H (Interim Care: Scottish Residential Placement)

An English local authority may place a looked-after child accommodated under section 20 of the Children Act 1989 in Scotland, without court permission, provided that the statutory care-planning, consultation and approval requirements are met.

Where a child is subject to an interim care order, sections 33(7) and 33(8) provide a statutory route for temporary placement elsewhere in the United Kingdom. Specific permission is unnecessary, although the care plan should be scrutinised and the order should preferably record the court’s endorsement.

Schedule 2 paragraph 19 applies to arrangements for a child to live abroad on a long-term or permanent basis, not temporary intra-UK placements. An English interim care order is not recognised or enforceable in Scotland. A deprivation of liberty requires application of the objective confinement test, assessed against the restrictions applicable to a comparable child.

South Tyneside Council accommodated a 15-year-old child under section 20 of the Children Act 1989 and placed him in a residential children’s home in South Lanarkshire. The child later became subject to an interim care order under section 38 while care proceedings continued in the Family Court at Newcastle.

The court was asked to determine whether the original placement was lawful, whether specific court approval was required for its continuation under the interim care order, whether the English order was recognised or enforceable in Scotland, and whether the child was deprived of his liberty.

1. Section 20 placement. Part III of the Children Act 1989 and the Care Planning, Placement and Case Review (England) Regulations 2010 did not prohibit an English local authority from placing a child accommodated under section 20 in Scotland. The authority had to comply with its duties under section 22, including welfare, wishes and feelings, placement and consultation duties, and with regulations 9 and 11. The placement had to be the most appropriate available placement and required the prescribed approval and consultation. The authority had failed to consult the mother adequately and had delayed issuing care proceedings, but those failures did not invalidate the statutory power to place the child.
2. Interim care order. An interim care order is included within the definition of a care order by section 31(11). Sections 33(7) and 33(8) permit a child subject to such an order to be moved outside England and Wales, but within the United Kingdom, without written consent or specific leave of the court. Paragraph 19 of Schedule 2 is concerned with arrangements for a child to live abroad and therefore applies to long-term or permanent expatriation, not a temporary or interim placement in Scotland. A separate application for permission was consequently unnecessary. The court should nevertheless scrutinise the care plan and, where appropriate, record its approval of the proposed Scottish placement on the face of the order.
3. Recognition in Scotland. The English interim care order was not recognised or enforceable in Scotland. The statutory mechanisms considered did not provide recognition for an interim order. If recognition or enforcement became necessary, the appropriate route would likely be a petition to the nobile officium of the Inner House of the Court of Session. No such application was presently necessary because the parents’ rights were recognised in Scotland and no enforcement issue arose. The Scottish placement providers derived their authority from their ordinary functions under Scots law and parental consent, not from the English order.
4. Deprivation of liberty. Applying the three elements identified in Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96, the material issue was objective confinement. The relevant acid test was whether the child was under complete supervision and control and not free to leave, assessed by comparison with a child of the same age, station, family background and relative maturity who was free from disability. The child’s restrictions did not meet that threshold. He had freedom of movement, was not prevented from leaving, and the supervision and support were comparable to parental watchfulness.
5. The court therefore confirmed that the placement was lawful, that no specific approval application was required, that the interim care order had no effect in Scotland, and that the child was not deprived of his liberty.