Justin Gray considers new deprivation of liberty provisions in relation to English children placed in Scotland.
The Children’s Hearings (Scotland) Act 2011 (Effect of Deprivation of Liberty Orders) Regulations 2022 came into force in Scotland on Friday 24 June, having been voted through the Scottish Parliament on 6 June.
These are temporary measures that give a High Court deprivation of liberty authorisation the same effect as a Scottish compulsory supervision order (“CSO”), and thereby remove the need for a English, Welsh or Northern Irish Local Authority seeking to place a child in Scotland to petition the Court of Session in Edinburgh to invoke the nobile officium for recognition of the authorisation in Scotland. The recognition may be for up to three months, and potentially renewable periods of three months at a time.
The regulations are intended as a short-term step pending a longer-term solution to the regulation of cross-border placements of young people on DoLs orders into Scottish residential care. They do not apply to children in secure accommodation: this was addressed in the Children and Social Work Act 2017 section 10 and Schedule 1, providing a mutual system of recognition across Great Britain for that class of accommodation.
The 2022 secondary legislation was introduced in response to the Supreme Court's decision in Re T (A Child)  UKSC 35 and may be seen as a welcome respite from the complexities identified in Salford CC v M (Deprivation of Liberty in Scotland)  EWHC 1510 (Fam), following which legal authority largely runs dry. The nobile officium exists to meet highly specialised or unforeseen circumstances, and not the increasingly routine applications in relation to English child subject to DoLs authorisations to be placed in Scotland. The Children & Families Directorate in Edinburgh estimated in January 2022 that there have been around 35 applications since the first such orders granted by the Court of Session in Cumbria County Council v The exercise of the nobile officium in relation to child X & Others  CSIH 92. In paragraphs 20-4 of that judgment, Lord Drummond was clear that the nobile officium exists to provide a remedy for cases that have not been foreseen, rather than where a statutory omission is a deliberate feature of any legislation.
Under the 2022 regulations the DoLs order has the same effect in Scotland as if it were a CSO. The DoLs authorisation is not converted into a CSO, and therefore the child does not become subject to the Scottish Children’s Hearings system without more, nor should he or she become habitually resident in Scotland.
A CSO is a far more flexible instrument than the English care order, as its governing legislation permits additional authorisations to be ‘bolted-on’; this includes secure accommodation restrictions. Section 83 of the Children’s Hearings (Scotland) Act 2011 provides the following measures:
(a) a requirement that the child reside at a specified place,
(b) a direction authorising the person who is in charge of a place specified under paragraph (a) to restrict the child's liberty to the extent that the person considers appropriate having regard to the measures included in the order,
(c) a prohibition on the disclosure (whether directly or indirectly) of a place specified under paragraph (a),
(d) a movement restriction condition,
(e) a secure accommodation authorisation,
(f) a requirement that the implementation authority arrange—
(i) a specified medical or other examination of the child, or
(ii) specified medical or other treatment for the child,
(g) a direction regulating contact between the child and a specified person or class of person,
(h) a requirement that the child comply with any other specified condition,
(i) a requirement that the implementation authority carry out specified duties in relation to the child.
Whilst Scotland shares the jurisprudence of the European Convention on Human Rights and therefore uses the Article 5 concept, the 2011 Act does not refer to ‘deprivation of liberty’ but to ‘restrictions on liberty’. The difference between deprivation and restriction is “one of degree or intensity, and not one of nature of substance”, and “account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question“ Guzzardi v Italy, 1980 3 EHRR 333 at paragraphs 92-3). In Scotland, children and young people can only be lawfully deprived of their liberty in secure accommodation, and therefore in an equivalent manner to those subject to Children Act 1989 section 25 orders.
Equally importantly, there is no provision in Scottish children law that enables or authorises the use of restraint or seclusion of a child, at least beyond the common law duty of care where a residential provider decides that restraint is necessary when confronted with a particular situation (and then subject of course to ECHR Article 3 considerations). Accordingly, English deprivation of liberty authorisations that declare use of physical restraint or other force to be lawful are unlikely to be recognised under a CSO, and there is little prospect of any creation of a legal authority to use restraint or force following Scotland’s Independent Care Review recommendation that “Scotland must strive to become a nation that does not restrain its children.” These limits are reflected in my own experience of behaviour management policies of Scottish residential children’s units striving to use persuasion and reason, rather than coercion and restraint.
Furthermore, the 2022 regulations were met with some opposition from children’s rights groups and authorities in Scotland, troubled that the effect will be to create a lack of parity of safeguards for the rights of English children placed in Scotland pursuant to the provisions compared with their Scottish peers in similar circumstances. Additionally, they point to a lack of clarity as to the division of responsibility between the two jurisdictions.
The Children & Young People’s Commissioner Scotland has therefore recommended that additional factors should be taken into account before any such order is made, and that additional conditions be imposed on placing English local authorities, when the English court considers whether to grant authorisation to place a child in residential care in Scotland:
- There should be a detailed assessment and plan compiled in conjunction with the public authorities in Scotland, the care home, the child, and members of the family, identifying how human rights obligations are to be met;
- There must be an analysis of the suitability of the identified children’s home to the child’s needs;
- The court should be provided with confirmation from the head of the care home that the staff have the necessary training and experience for the plan identified;
- There should have been consultation with the local Scottish local authority and health board;
- The court should be informed who will be responsible for assessing the needs of the child and co-ordinating and delivering services, within an undertaking that the placing authority and its agents will comply with the child’s ECHR and UNCRC rights;
- There should be arrangements for an early (within 22 days) multi-agency Team Around the Child meeting, in conjunction with the relevant Scottish local authority;
- There must be support of regular contact between the child and members of his or her family;
- Identification of appropriate arrangements for transport to and from Scotland, for example taking into account the absence of any provision of use or restraint or force while in Scotland;
- Funding a Scottish lawyer to assist the child, which would be in addition to the local advocacy service that is provided for by the secondary legislation.
Accordingly, while the 2022 regulations are likely to be seen as a welcome path away from the complexities, uncertainty and expense of English local authorities petitioning the Court of Session to invoke the nobile officium, a placement in Scotland of a child subject to a DoLs authorisation continues to be a plan requiring very careful thought and commitment.