Recent developments in the placement of looked after English children in Scotland.

Justin Gray considers the current law on the placement of looked after English children in Scotland, in particular in cases where the child comes to live there permanently.

The distinction of purpose of placement of looked after children in Scotland that I referred to in this paper in January 2020 was confirmed by the Family Court in Re H (Interim Care: Scottish Residential Placement) [2020] EWHC 2780. The Family Court now recognises that temporary placements do not require the court’s approval pursuant to Children Act 1989 Schedule II paragraph 19. Approval is still required where the plan is for the child to move to Scotland on a permanent basis – “to live” there, as the legislation has it, rather than just “be placed” there.

In these circumstances, a child might be placed temporarily in Scotland, perhaps for assessment or treatment, but subsequently come to live there permanently. Decisions of the Local Authority with responsibility for the child and the placement may therefore determine whether Schedule II paragraph 19 approval becomes necessary some time after the child has moved to Scotland. This might include:

• A long-term placement decision in accordance with Regulation 12 of the Care Planning, Placements and Case Review (England) Regulations 2010
• Approval of the carers as long-term foster carers pursuant to the Fostering Services (England) Regulations 2011.

In practice, the English authority holding the care order and placing the child in Scotland tends to prefer to retain responsibility for the child even after a decision to make the placement in Scotland a permanent or long-term arrangement. The option to convert the care order into a compulsory supervision order and transfer responsibility to the relevant Scottish authority pursuant to the Children's Hearings (Scotland) Act 2011 (Transfer of Children to Scotland – Effect of Orders made in England and Wales or Northern Ireland) Regulations 2013 is rarely taken up. There is certainly no obligation to do so, and social workers tend to prefer to maintain existing working relationships, even at a distance and across the border. 

Retaining responsibility for a child placed in Scotland has many potential implications.

There should be liaison with the local Children’s Services authority in Scotland, to ascertain availability of services and practical resources.

The Children’s Reporter for the relevant area in Scotland should be informed of the long-term nature of the placement.

The ordinary residence of the child may well remain the area of the English authority designated in the care order because of the ‘stop the clock’ provision in Children Act 1989 section 105(6). However, habitual residence may well change, if it has not already become Scotland: there has been limited review of the relationship of habitual residence to ordinary residence following the series of Supreme Court decisions in 2013-16, although it was touched upon in the case of R (on the application of Cornwall Council) v Secretary of State for Health [2015] UKSC 46.

This can lead to problems such as that identified in An English Local Authority v X, Y and Z (English Care Proceedings [2015] EWFC 89. In that case a Scottish child was placed in foster care in England, but the Scottish local authority pointed out that its obligations under the Children (Scotland) Act 1995 only imposed duties upon it in relation to children “within its area”. The English Family Court considered that the child remained habitually resident in Scotland and therefore it was unable to make Children Act orders.

By way of further example, the uncertainty in relation to habitual residence once the child has moved to Scotland may mean that special guardianship is no longer available in the longer term. The English local authority might consider special guardianship as the legal structure for the child that would best meet his needs, but it would no longer be available if the child has by then become habitually resident in Scotland.  Additionally, there are complications as to how the local Scottish Children’s Services could provide special guardianship support given the absence of an equivalent Scottish order save recognition pursuant to the Family Law Act 1986.

If the English care order is to continue after the child’s home in Scotland becomes a permanent arrangement, then Schedule II paragraph 19 approval should still be obtained at or very shortly after the decision to make it a long-term placement. The child’s habitual residence is likely to be changing at that point even though his ordinary residence may remain with the English authority.

Where an English High Court deprivation of liberty authorisation is in place and it is necessary to place the child in Scotland, the English local authority presently needs to petition the Court of Session in Edinburgh to invoke the nobile officium. The Scottish government’s plans to temporarily avoid this, by permitting DoLs orders made in England recognised in Scotland as though they were compulsory supervision orders, have been met with objections. I shall write further about this if the Edinburgh government is able to bring the Children’s Hearings (Scotland) Act 2011 (Effect of Deprivation of Liberty Orders) Regulations 2022 into force later this year.

Justin Gray is a barrister at Trinity Chambers in Newcastle-Upon-Tyne.