• Friday, June 24, 2022
Trinity's Justin Gray Considers New Deprivation of Liberty Provisions in Relation to English Children Placed in Scotland

Trinity Family Law barrister, Justin Gray has provided the following review of the 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 are due to come into force in Scotland on Friday 24 June, after being voted through Holyrood on 6 June.

These are temporary measures that give English deprivation of liberty authorisations the same effect as Scottish compulsory supervision orders (“CSO”), and thereby remove the need for the placing Local Authority to petition the Court of Session in Edinburgh to invoke the nobile officium for recognition of the authorisation in Scotland.  They do not apply to children in secure accommodation, as this was addressed in co-ordinated legislation in both Westminster and Edinburgh in 2017.

The secondary legislation was introduced in response to the Supreme Court's decision in Re T (A Child) [2021] UKSC 35.  Additionally, 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 estimates 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 [2016] CSIH 92.

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.   Note that the DoLs order is not converted into a CSO, and therefore the child should not become subject to the Scottish Children’s Hearings system without more, nor become habitually resident in Scotland.

The regulations have been met with some opposition from children’s rights groups in Scotland, troubled that the effect will be to create a disparity for 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 undertakings being designed by the Scottish government for placing English Local Authorities are likely to relate principally to the cost of the placement.

In order to meet these perceived deficiencies it may be that Local Authorities should also undertake to locate and fund a Scottish lawyer to assist the child in addition to the local advocacy service that is provided for by the legislation.