The London Borough of X v Y (Deprivation of Liberty in Scotland)

A court may authorise a deprivation of a child’s liberty where the arrangements satisfy the Storck and Cheshire West criteria and the measures are lawful, necessary, proportionate and in the child’s best interests.

Placement outside England and Wales may be authorised where extensive searches disclose no suitable domestic placement and the child faces an immediate risk of serious harm. The order must be the least restrictive response, use appropriately trained staff and remain under active review. Where the placement is in Scotland and is not approved secure accommodation, the local authority must take steps to obtain legal authority in Scotland.

The London Borough of X applied for authority to place Y, a 15-year-old child subject to a final care order, in a residential placement in Scotland. It also sought authorisation to deprive him of his liberty and to use a secure transport service, with reasonable force if necessary.

Y was at immediate risk of serious harm in his existing London placement, and extensive enquiries had identified no suitable placement in England or Wales. The proposed Scottish placement was newly registered and was not approved secure accommodation under the relevant Scottish legislation.

The central issues were whether the High Court could authorise the cross-border placement and deprivation of liberty, and whether the proposed restrictions were lawful, necessary, proportionate and in Y’s best interests.

1. Orders granted. The court authorised the local authority to place Y in Scotland, to deprive him of his liberty and to use appropriately trained secure transport, including minimum necessary force or restraint.
2. The arrangements satisfied the deprivation of liberty criteria under Storck v Germany and Cheshire West and Chester v P: Y could not consent, was subject to continuous supervision and control, and was not free to leave. The restrictions engaged Article 5 of the ECHR and Article 37 of the UN Convention on the Rights of the Child.
3. The deprivation of liberty was lawful, necessary and proportionate. It was in Y’s best interests because his existing placement could not keep him safe, he was at immediate risk of serious harm or death, and there was a significant risk that he would abscond without restrictions. The Scottish placement was the only identified available option after extensive searches of more than 100 providers in England and Wales.
4. The restrictions had to be the least restrictive of Y’s rights and freedoms, proportionate to the anticipated harm, limited to what was necessary for Y’s safety and that of others, respectful of his dignity, and implemented by appropriately trained staff. The order authorised deprivation of liberty; it did not itself require every authorised restriction to be imposed. Detailed management was for the local authority, subject to active reconsideration and review.
5. The court noted unresolved legal questions concerning the procedural route under paragraph 19 of Schedule 2 to the Children Act 1989 and recognition in Scotland of an English authorisation concerning an unapproved secure placement. The local authority was required to seek relief from the Inner House of the Court of Session. That court subsequently made an interim order recognising and enforcing the English order in Scotland for one week.