Judge approves placement in Scotland for 15-year-old from London, expresses concern at lack of availability in England and Wales

A judge has deplored the lack of secure placements for young people in England and Wales in a case where a troubled 15-year-old had to be moved from London to Scotland.

In The London Borough of X v Y (Deprivation of Liberty in Scotland) [2021] EWHC 440 (Fam)  L Samuels QC, sitting as a deputy High Court judge, explained why he granted orders to an unnamed London borough to allow child Y  to be placed outside of the jurisdiction in Scotland, pursuant to paragraph 19, Schedule 2, Children Act 1989; and to deprive Y of his liberty and use a secure transport company to take him to Scotland, using reasonable force if necessary.

He said: “This judgment highlights again the lack of suitable placements available within England and Wales to accommodate young people with particular needs.”

Y was made subject to a final care order in 2018. His placement in London has been unable to contain him and he had regularly absconded and been involved with gangs.

He did not attend school and had money and expensive clothing whose origin he refused to explain. Y was also believed to be running ‘county lines’ drug sales.

Y was arrested in 2020 for carrying a knife and an assault and in January 2021 sustained a significant hand injury.

The following month he was stabbed and sustained a 20 cm laceration to his buttock, the consequences of which “could have been life changing, had the assault been to a different part of his body he could have been killed”, the judge said.

Y was at immediate risk of significant harm or death and had to be moved but a search by phone of more than 100 premises turned up none suitable in England and Wales.

Accommodation was found in Scotland but it had been unclear whether the placement was approved as secure accommodation by Scottish Ministers.

Y opposed any deprivation of liberty restrictions as unnecessary and accepted he should move from London but argued that Scotland was too far and said his buttock injury made travelling even a short distance in a car painful.

After some confusion as to the location and status of the Scottish placement, Judge Samuels said it proved to be newly registered and was yet to be inspected by the Care Inspectorate in Scotland.

He said: “I was informed…that the local authority was now alive to the legal issues that would arise from such a placement and would be urgently considering issuing a petition to the Inner House of the Court of Session asking the Scottish Court to invoke the nobile officium.”

According to the Law Society of Scotland, the nobile officium is a facility found only in Scottish law to allow a court to act where there is no legal rule adequately covering a given situation.

Judge Samuels said: “I emphasised at the hearing that I am not ordering that Y be deprived of his liberty, I am authorising it.

“The detailed management of any authorised restriction is a matter for the local authority to decide, in discussion with the placement, Y's mother and of course Y himself. Active reconsideration of the level of restriction will be necessary once there has been a building of trust between Y and the placement and Y and the local authority.”

He noted that the Supreme Court was likely to soon determine Re T (a child) UKSC 2019/0188, which concerned whether it is lawful to make orders under the inherent jurisdiction to place a child in an unregistered secure home.

Pending that, current authorities do support the lawfulness of such a placement, Judge Samuels said.

He concluded: “Whatever the legal outcome of the proceedings in Scotland, this case is but another example highlighting the lack of regulated placements in England and Wales for troubled young people.”

A number of High Court judges have expressed concerns at the lack of secure accommodation for vulnerable children, most notably Mr Justice MacDonald who in February this year sent a fourth judgment to ministers over the continuing unavailability of a regulated placement for a vulnerable 16 year old with multifaceted difficulties and at a high risk of serious self-harm or suicide.

Mark Smulian