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Child orders: mind the gap

12 December 16

How the nobile officium was invoked to provide a remedy in an unusual family law case

by Lucia Clark, Anna Forsyth

It’s not often family lawyers get to help make new law, or have a situation described in court as a “matter of life and death”! But this was our experience recently in an unusual petition to the nobile officium of the Court of Session.

The nobile officium is a little-used power which allows the court to provide an equitable remedy where some special circumstance has arisen which justifies and requires its intervention in this way. Its purpose is to prevent injustice where the circumstances are extraordinary or unforeseen, and no other remedy or procedure is provided by the law. It will be evident that this is not something that happens every day, and not every petition will meet the strict tests.

Cross-border difficulty

The petition in question sought the grant of orders recognising and enforcing orders of the English court, in terms of which English children were detained in secure accommodation in Scotland. The children were normally resident in England, and care proceedings were before the English court. Their circumstances were such that English local authorities at times had to seek secure accommodation for them at very short notice. There is a shortage of places in England & Wales at present, and local authorities sometimes find that the most suitable units for vulnerable young people are in Scotland.

Legally, however, there is no means of recognising English orders in Scotland. The effect is that the young people were potentially being detained unlawfully and in contravention of their rights under the European Convention on Human Rights, in particular article 5, under which any deprivation of liberty has to be held by the court in that jurisdiction to be lawful and proper. It also placed the staff at the Scottish units in a difficult position, in terms of whether or not to detain the young people, given the legal uncertainties.

The petition was prompted by the judgment in X (a child) and Y (a child) [2016] EWHC 2271 (Fam). The President of the Family Division, Sir James Munby, detailed the cross-border enforcement difficulties (which appear to have gone unnoticed up to now), and held that in relation to these placements from England to Scotland, “there are serious lacunae in the law which, it might be thought, need urgent attention”.

Recognition and enforcement of the English orders was required in Scotland, to ensure that the young people could remain in the units which the English court had already determined could best meet their needs. Not obtaining orders in Scotland might have resulted in very vulnerable young people being immediately turned out of the units.

Any alternative?

Part of the nobile officium test is demonstrating that there is no other possible remedy. Our analysis was that provision is in place for recognition and enforcement of a variety of similar orders, but not for temporary placement of an English child in Scottish secure accommodation. The orders in the present proceedings did not fall within the scope of 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, being orders made under the inherent jurisdiction of the English court.

Interestingly, had these children been from Ireland (or any other EU member state), a cross-border placement in a Scottish secure unit would have been recognised under Council Regulation (EC) 2201/2003 (“Brussels IIA”), which regulates such matters when arising between different EU member states. There is however no equivalent statutory regulation in relation to orders made by a court of another part of the UK.

The court also had to consider whether it would be possible or appropriate for the English local authorities to take substantive proceedings in Scotland, such as an application to a children’s hearing. Our argument was that as well as having issues of jurisdiction, such proceedings would duplicate the existing proceedings in England and lead to unfairness for the children and guardians involved.

Legislation awaited

In summary, the court granted interim orders for recognition and enforcement of the English order, in what appears a very novel and unusual use of its equitable powers.

The Scottish and UK Governments were also involved, and took the view that there was a statutory lacuna which should be addressed, particularly given that there are a number of other young people from various areas of England also placed or to be placed in Scotland, where (in terms of the current law) further petitions to the nobile officium will require to be raised. We understand that the Governments are now in the process of drafting legislation to rectify the situation for the future.

Lucia Clark, partner in Morton Fraser’s Family Law team
Anna Forsyth, associate in Morton Fraser’s Family Law team 

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