Gaps in the law affecting the ability of local authorities and courts in England to make use of secure accommodation units in Scotland need to be addressed urgently, the President of the Family Division has said.
Councils and the courts – particularly in the Northern and North-Eastern Circuits – have sought to use such units because of a shortage of places in England. Sir James Munby said precise data was not available but added that there had been at least five such cases.
In X (A Child) and Y (A Child)  EWHC 2271 (Fam) the judge said there were important cross-border issues as between England and Scotland in relation to the making of secure accommodation orders.
In the two cases before him, involving a 16-year-old girl and a 15-year-old boy, he concluded that:
- A judge in England cannot make a secure accommodation order under section 25 of the Children Act 1989 if the child is to be placed in a unit in Scotland.
- That being the case, the same outcome could be achieved by use of the inherent parens patriae jurisdiction of the High Court.
- In either case, the order made by the English judge would not be recognised and enforced in Scotland.
Sir James said these issues needed to be viewed in the wider context of other cross-border issues arising as between England and Scotland in family cases.
“In my judgment it is clear that none of these legislative provisions provides for the recognition and enforcement in Scotland of any of the orders made or proposed to be made in these cases nor, putting the point more generally, of any order made by an English judge under the inherent parens patriae jurisdiction. Nor has anyone been able to point me to any other provision in Scottish law having that effect,” he concluded.
The Family President said the way forward was for the local authorities involved should apply to the Court of Session in Scotland with a view to invoking the nobile officium, which is the extraordinary jurisdiction of the Court of Session and the High Court of Justiciary to make orders where there is no existing legal remedy.