H (Interim Care: Scottish Residential Placement)

The application before the court concerns one young person who, for the purposes of this judgment, wishes to be known as Henry (Footnote: ¹) (Footnote: ²); he is aged 15. He was accommodated by the Applicant, South Tyneside Council (“the Local Authority”) in August 2019, with the agreement, indeed at the instigation, of his father; just under a year later, on 15 June 2020, the Local Authority applied for, and a short time later² obtained, an interim care order in respect of Henry. The proceedings under Part IV of the Children Act 1989 (“CA 1989”) are currently progressing in the Family Court sitting at Newcastle-Upon-Tyne.

When Henry was initially accommodated in August 2019, he was placed in two consecutive short-term unregulated placements, one of which was a caravan. The Local Authority then identified a suitable placement for Henry in a residential children’s home in South Lanarkshire, Scotland, which I shall call Ossian House (Footnote: ³). Ossian House is registered and inspected as a care home by the Care Inspectorate in Scotland and is a registered establishment for the purposes of the Residential Establishments - Child Care (Scotland) Regulations 1996 (Footnote: ⁴).

Henry is one of a number of young English people in the care system in England who have been, or are, placed in residential children’s homes in Scotland.

The professionals and family agree that the placement at Ossian House is meeting Henry’s needs very well; he himself enjoys life there and does not wish to move, at least for the time being. It is right to note, from my own judicial experience of similar cases, that not all such placements enjoy such high levels of support or approval from the family and/or the child as this one.

The issue which arises in this case is one which has, for some time now, confronted judges in the Family Court on the North Eastern Circuit (and I believe elsewhere), namely to identify the legislative or other legal framework under which a placement of an English child in a Scottish residential care home can be achieved, or authorised and/or recognised. In resolving this issue, I proceed on the secure footing that:

“Scotland and England & Wales share a common commitment to the rule of law and to the principle that the welfare of the child is the paramount consideration when his or her needs or rights are being considered by the courts” (Footnote: ⁵).

However, beyond that sound and familiar statement of principle, there is no easy answer.

The absence of a statutory regulation of cross-border issues within the United Kingdom was a matter on which Sir James Munby P commented in Re X & Y (Secure Accommodation: Inherent Jurisdiction) [2016] EWHC 2271 (Fam); [2016] 3 WLR 1718; [2017] Fam 80 (‘Re X & Y’) at [51]. Insofar as he identified the existence of a limited statutory framework, he observed (at [3]) that “there are serious lacunae in the law”. The particular lacuna identified in Re X & Y (i.e. placement in secure accommodation in Scotland pursuant to an English order under Section 25 Children Act 1989) was later cured by statutory amendment (Footnote: ⁶); but it is plain that the wider lacunae to which Sir James Munby P referred extended beyond those specifically covered by that judgment.

More recently, Moylan LJ in Re C (Schedule 2 Paragraph 19 Children Act 1989) [2019] EWCA Civ 1714 (‘Re C’), again a case concerning an intra-UK

I have broken down the core issue which arises on the facts of this case, on which my determination is sought, to the following questions:

In determining these questions, I have received and read the statements and reports filed by and on behalf of the parties. I received able written and oral submissions from the advocates at a hearing, conducted remotely, on 8 September 2020. I reserved judgment at least in part to accommodate the filing of further written submissions on the issue identified at [8](iii) above. Having received those submissions, I then invited the parties jointly to instruct a Scottish family lawyer to advise on the relevant law in Scotland; I received the expert opinion from Jonathan Mitchell QC of the Faculty of Advocates on 24 September 2020. I then commissioned further submissions on a discrete issue arising on the evidence, which I received on 9 and 12 October 2020. I am most grateful to all of the advocates, particularly Mr Donnelly who has shouldered the greater part of the research and case management, for obliging this unusually iterative process.

Mr Donnelly submitted that the Local Authority was entitled to place Henry at Ossian House in Scotland as an accommodated child, and that the authority did not require the specific approval or permission of the court to continue that placement at the point at which he became the subject of a statutory order under Part IV CA 1989. Mr Donnelly submitted that once an interim care order under section 38 CA 1989 was made on 7 July 2020, the authority had power under section 33(7)/33(8) to continue the placement of Henry within the United Kingdom (i.e. in Scotland).

The respondents each challenged the Local Authority’s decision-making in relation to the accommodation of Henry (in particular, the failure to consult with Henry’s mother, and the length of the accommodation: both dealt with at [21] below). Ms Spratling, and separately Ms Webster and Mr Wraith, all submitted, with varying shades of conviction, that the route to placement in Scotland once Henry was the subject of an interim care order, was by paragraph 19 of Schedule 2 CA 1989. However, during the hearing, and by the time of their final submissions, they had each retreated somewhat from their positions, acknowledging that there were considerable complications in relying on this provision.

All parties agreed that:

Henry’s parents separated when he was an infant. Public law care proceedings were launched in his early life, arising predominately from concerns about his mother’s historic alcohol dependency; those proceedings concluded with an order that Henry live with his father and paternal grandmother. In 2006 a residence order (section 8 CA 1989) was granted in favour of the father. Henry’s mother has had only limited contact with Henry during his life. Indeed, she saw Henry only 2 or 3 times over a period of 10 years, and latterly her contact had only been by phone.

Henry has complex needs. He has a mild intellectual disability, is reported to suffer from Attention Deficit Hyperactivity Disorder (‘ADHD’), for which he is prescribed the drug risperidone, and a possible (though contentious) diagnosis of foetal alcohol syndrome. He has attachment difficulties, struggles to show empathy, and has found it difficult to communicate his feelings. For some time, he has been under the care of his local Child and Adolescent Mental Health Services; there are reported concerns that he may have an autistic spectrum disorder, but he has not yet been formally assessed for this. Henry can still become hyperactive and anxious; his challenging behaviours include displays of anger, aggression, self-harm, screaming, soiling and violence.

Over the years, while in the care of his father, numerous referrals were made to social services about the care of Henry; some included expressions of concern about the father’s physical chastisement of Henry. Professional support offered by the Local Authority over this time did not, regrettably, ease the father’s difficulties (and latterly his partner’s difficulties) in caring for Henry; the father felt that the levels of assistance offered were insufficient. In July 2019, the father, who it is recognised had provided overall a “good standard” of care of Henry’s basic needs (and is said to “idolise” his son), was finding it too difficult to manage Henry’s challenging behaviours, and in particular his aggression; he requested the Local Authority to accommodate Henry.

The Local Authority was keen to identify a placement for Henry which would be able to support his complex needs and offer a 2:1 staff ratio in a nurturing and safe environment. While searching in England for a suitable placement, many units which were approached declined to offer Henry a place, advising that they felt that he would require a secure environment, and that a simple residential care setting would not be appropriate by reason of the risk he posed to himself and others. Others simply did not have space for him.

As I mentioned above ([2]), Henry was initially placed in very temporary, and largely unsuitable, accommodation local to home. After fruitless enquiries of English residential care homes, in early August 2019 the Local Authority identified Ossian House, which provides specialist school provision and other therapeutic interventions which Henry requires, in what is described as a small and “homely” rural environment; it is located in South Lanarkshire. In early August 2019, Henry moved there.

It is material to note (I return to this later – see [47](v)) that Henry had very little notice of the move, and was not in a good position to express a view about, let alone give any informed ‘consent’ to, the proposed placement at Ossian House. The social worker simply reported that Henry and his father “appeared ‘fine’ about the move albeit anxious”. Henry’s view of the prospective placement would (or at least could), in my judgment, undoubtedly have been affected by the fact that he had quite wrongly

One year on (Footnote: ⁷), the Guardian reported on Henry’s placement at Ossian House, in these terms:

“[Henry] said he would like to go back home to dad, “but only when the time is right”. He agreed that it wouldn’t be helpful to rush back home and for things to go wrong again. It was apparent from our discussions, in the presence of his keyworker, that [Henry] is very happy and content with the life that he can enjoy is in his current placement. He clearly finds the staff helpful and supportive”.

Henry was accommodated pursuant to section 20 CA 1989 (Footnote: ⁸) on 7 June 2019. He then became a ‘looked after’ child within the meaning of section 22(1) CA 1989, and this placed the Local Authority under a number of statutory duties including (but not limited to) (Footnote: ⁹):

On reviewing the evidence, I identified at least two ways in which I consider that the Local Authority failed Henry in planning for him as a ‘looked after’ child:

The statutory framework for the provision of accommodation for Henry as a ‘looked after child’ are covered by Part III of the CA 1989; I have set out some of the key duties falling within Part III at [20] above. I find nothing in Part III which specifically prohibits or even contra-indicates placement of Henry, or an English child like him, in Scotland. Those statutory duties are supplemented by the Care Planning, Placement and Case Review (England) Regulations 2010 (“the 2010 Regulations”).

The 2010 Regulations merit a little attention here. Regulation 9 makes specific provision for placement of a looked after child, and a placement plan for the child, as follows:

“Regulation 9: Placement Plan:

(1)

Subject to paragraphs (2) and (4), before making arrangements in accordance with section 22C for C (Footnote: ¹⁶)'s placement, the responsible authority must—

(a)

prepare a plan for the placement (“the placement plan”) which—

(i)

sets out how the placement will contribute to meeting C's needs, and

(ii)

includes all the matters specified in Schedule 2 as are applicable, having regard to the type of the placement, and

(b)

ensure that—

(i)

C's wishes and feelings have been ascertained and given due consideration, and (ii) the IRO has been informed.

(2)

If it is not reasonably practicable to prepare the placement plan before making the placement, the placement plan must be prepared [as soon as is reasonably practicable after] the start of the placement.

(3)

The placement plan must be agreed with, and signed by, the appropriate person¹⁷.

(4)

Where the arrangements for C's placement were made before 1st April 2011, the responsible authority must prepare the placement plan as soon as reasonably practicable.”

In the context of a child who is ‘looked after’ (namely a child who may be provided with accommodation under Part III CA 1989 or under a care order under Part IV CA 1989) it is necessary to consider regulation 11. This provides as follows:

“Regulation 11: Placement out of area: Placement decision

(1)

Subject to paragraphs (2) to (4), a decision to place C outside the area of the responsible authority (including a placement outside England)—

(a)

must not be put into effect until it has been approved by a nominated officer, or

(b)

in the case of a proposed placement which is also at a distance, must not be put into effect until it has been approved by the director of children's services.

The important points to collect from Regulation 9 and 11 of the 2010 Regulations it seems to me are as follows:

Thus, it will be clear that there is nothing in the primary or secondary legislation which prevents a local authority from placing a child which it is ‘looking after’ (accommodating) under section 20 CA 1989 outside of England (i.e. within Scotland) or even outside the UK. On my reading of the legislation (and no party in the instant case demurs), this can be done without recourse to the court, provided that the local authority has complied with its multiple duties under Part III CA 1989 (specifically section 22), is satisfied that this is the most appropriate placement for the child (Footnote: ²⁰), has complied with the placement plan requirements under Regulation 9 of the 2010 Regulations and has complied with the detailed consultation (Footnote: ²¹) and approval (Footnote: ²²) provisions of Regulation 11 of the 2010 Regulations.

Materially, it is a duty on the local authority, when fulfilling its wide obligations under regulation 11, to ensure that the child’s wishes and feelings have been ascertained and given due consideration, pursuant to regulation 9(1)(b)(i). Accordingly, the child would not be required to consent to a placement in Scotland which is deemed to be necessary in the short-term or interim to meet his or her needs (contrast the position for a permanent relocation: see [40] below); put another way, the child would not have a right of ‘veto’ over such a placement.

Important statutory safeguards for parents, and others with parental responsibility, are built into this arrangement by reason of the provisions of Part III CA 1989 (particularly section 22(7)/(8) and section 22C(2)-(4) CA 1989) discussed above (see [20] and [21](i)).

I was not invited to consider specifically what steps were actually taken to prepare the ground for Henry as he moved placement from England to Scotland. Insofar as I have not addressed the requirements above which would have been applicable in his case, I have assumed for present purposes that:

Had the local authority not fallen into error as discussed in [21] above, and subject to satisfaction of the points discussed in [28] and [29] above, Henry’s placement at Ossian House in the summer of 2019, while accommodated by the Local Authority, would have, in my judgment, been a perfectly proper one.

That said, it may be that in some situations a local authority may wish to have the benefit of the court’s oversight of a placement of an accommodated child in Scotland or indeed elsewhere. Section 100(2) CA 1989 does not (either explicitly or implicitly) preclude the court from exercising the inherent jurisdiction where the child has been accommodated voluntarily by a local authority with the consent of the parent(s), where that consent has not been withdrawn (Footnote: ²⁶). In those circumstances, it seems to me that a local authority could apply to invoke the inherent jurisdiction to apply for an order to authorise the child’s placement in Scotland. Sir James Munby P largely confirmed the appropriateness of this course in Re X and Y at [47]:

“… in principle, a judge in exercise of the inherent jurisdiction can make an order directing the placement of a child in secure accommodation in Scotland. So too, in principle, a judge in exercise of the inherent jurisdiction can make an order directing the placement of a child in nonsecure accommodation in Scotland.” (emphasis by underlining added).

In June 2020, the Local Authority applied for a care order; in adjourning that application on 7 July 2020, Her Honour Judge Hudson perfectly properly made an interim care order in relation to Henry under section 38 CA 1989. Under statute, the court may not make an order under section 38:

“… unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)”.

This subsection references the ‘threshold criteria’ in section 31 (i.e. proof of harm or likelihood of harm, attributable to the care given to him if the order were not made).

Section 31(11) importantly provides that:

““a care order” means (subject to section 105(1) (Footnote: ²⁷)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38” (emphasis by underlining added).

Section 33 CA 1989 sets out the ‘Effect of care order’, and therefore, per section 31(11) (see [33] above), unless a contrary provision applies, an interim care order. Section 33 sets out the basic duty of the local authority designated by the order “to receive the child into their care and to keep him in their care while the order remains in force”. Significantly, section 33(3)(a) invests in the local authority parental responsibility for the child for the duration of the care order / interim care order, and under such order the local authority has the power to determine the extent to which a parent or any other person with parental responsibility may exercise that parental responsibility. It is sometimes said that the local authority acquires ‘senior’ parental responsibility in this way.

Section 33(7) and Section 33(8) read as follows:

“(7)

While a care order is in force with respect to a child, no person may –

(a)

cause the child to be known by a new surname;

or

(b)

remove him from the United Kingdom,

without either the written consent of every person who has parental responsibility for the child or the leave of the court.

(8)

Subsection (7)(b) does not -

(a)

prevent the removal of such a child, for a period of less than one month, by the authority in whose care he is; or

(b)

apply to arrangements for such a child to live outside England and Wales (which are governed by paragraph 19 of Schedule 2 [in England….]).” (emphasis by underlining added).

These sections should be read with regulation 12 of the 2010 Regulations which reads as follows:

Section 33(7) CA 1989 largely replicates in public law the provisions of section 13(1) CA 1989 in private law, and section 14C(3) CA 1989 in relation to a Special Guardianship arrangement. In all those sections of the Act, the reference to ‘United Kingdom’ is both interesting and important. It should be remembered that the jurisdictional reach of the Children Act 1989 is England and (in most respects) Wales. It is plainly not an accident of drafting that the primary legislation contemplates that a child may move around within the United Kingdom, the statutory regime presumably contemplating close intra-UK co-operation in relation to such arrangements. In relation to a child in care, only where the move:

I have considered (though I was not addressed specifically on this point) whether the word ‘person’ in section 33(7) (“no person may … remove him from the United Kingdom”) can refer to a local authority. I consider that it can, and that it does. Under section 5 and Schedule 1 of the Interpretation Act 1978, “unless the contrary intention appears”, the word “person” is to be read as including “a body of persons corporate or unincorporate”. This point was picked up in Re C at [31]:

“Turning to the question of what is meant by "live with a suitable person", the Interpretation Act 1978 ("the 1978 Act") provides that the word person "includes a body of persons corporate or unincorporated". As is made clear in Bennion on Statutory Interpretation, 7^th Edition, the definitions in this Act "apply to Acts in general", paragraph

19.1(1). Specifically, in respect of the definition of the word "person", Bennion states that this definition "does not apply if the contrary intention appears, whether expressly or by implication"; a number of cases are then cited as examples to support this proposition, paragraph 19.5. Reference could also be made to the ejusdem generis principle of construction, which is dealt with in Bennion in Chapter 23”.

The Court of Appeal in Re C concluded that the word ‘person’ in paragraph 19 of Schedule 2 did not refer to a local authority as a body corporate. In my judgment this ruling was specific to the context in which the word ‘person’ was there being considered:

“[40]… while a child can live in a residential home which might be owned by a company it would be difficult to argue that, as a result, the child was living with a person. Further, when this is added to the fact that the words "other suitable person" follow a list comprising natural persons, I do not consider it is possible to interpret this provision as meaning other than that it is confined, as decided by Sir James Munby P, to natural persons.”

This reference in the last cited sentence above is to [29] (Footnote: ²⁹) of Re X & Y where Sir James Munby P said:

“"Person" here does not, in my judgment, extend to a corporate or other organisation or body. It means a natural person.”

I have underlined the word ‘here’ in this extract to emphasise again that Sir James Munby P was specifically referring to the context in which the word appears, namely in paragraph 19 of Schedule 2.

By contrast, Section 33(7) is concerned with the arrangements for, and specifically the restrictions on, the cross-border movement or expatriation of a child; as mentioned above, the provisions replicate in all material ways those in private law under section 13 or section 14C (see [37] above). Given that the local authority, in this context, holds (senior) parental responsibility for the child, sharing it with the parents, it is appropriate to treat it as a ‘person’ in this context. The fact that the local authority is referred to specifically in section 33(8)(a) as “the authority in whose care he is” does not detract from this conclusion; it simply identifies the local ‘authority’ as the one ‘person’ who can remove the child for up to one month, in a similar way to the “person named in the child arrangements order as a person with whom the child is to live” in section 13(2) CA 1989, and the special guardian (who may remove the child for up to three months) per section 14C(3)(4) CA 1989. It is also material to note in this regard that in Re J (A minor)(Change of name) [1993] 1 FLR 645, and in Re M, T, P, K and B (Care: Change of name) [2000] 2 FLR 645, the High Court did not question (i.e. in either case) that it was the local authority (qua statutory ‘parent’)

What then is the relevance of paragraph 19 of Schedule 2, which is explicitly referenced in section 33(8) and regulation 12 of the 2010 Regulations (above), and on which the advocates for the respondents in this application initially relied? This paragraph provides as follows:

“Arrangements to assist children to live abroad

(1)

A local authority may only arrange for, or assist in arranging for, any child in their care to live outside England and Wales with the approval of the court.

(2)

A local authority may, with the approval of every person who has parental responsibility for the child arrange for, or assist in arranging for, any other child looked after by them to live outside England and Wales.

(3)

The court shall not give its approval under subparagraph (1) unless it is satisfied that –

(a)

living outside England and Wales would be in the child's best interests;

(b)

suitable arrangements have been, or will be, made for his reception and welfare in the country in which he will live;

(c)

the child has consented to living in that country; and

(d)

every person who has parental responsibility for the child has consented to his living in that country.

(4)

Where the court is satisfied that the child does not have sufficient understanding to give or withhold his consent, it may disregard sub-paragraph (3)(c) and give its approval if the child is to live in the country concerned with a parent, guardian, special guardian or other suitable person.

(5)

Where a person whose consent is required by subparagraph (3)(d) fails to give his consent, the court may disregard that provision and give its approval if it is satisfied that that person – (a) cannot be found;

(b)

is incapable of consenting; or

(c)

is withholding his consent unreasonably.

(6)

Section 85 of the Adoption and Children Act 2002 (which imposes restrictions on taking children out of the United Kingdom) shall not apply in the case of any child who is to live outside England and Wales with the approval of the court given under this paragraph.

(7)

Where a court decides to give its approval under this paragraph it may order that its decision is not to have effect during the appeal period.

(8)

In sub-paragraph (7) 'the appeal period' means –

(a)

where an appeal is made against the decision, the period between the making of the decision and the determination of the appeal; and

(b)

otherwise, the period during which an appeal may be made against the decision.

(9)

This paragraph does not apply –

(a)

to a local authority placing a child in secure accommodation in Scotland under section 25, or

(b)

to a local authority placing a child for adoption with prospective adopters”.

A review of the authorities, consistent with wider judicial experience in the Family Courts of the North East, reveals that reliance has in fact been placed on this paragraph in a number of intra-UK cases as founding the statutory jurisdiction for achieving the trans-border interim placement of an English child in Scotland, but it has not been possible, following researches in this case, to identify any judgment in which a convincing, indeed any, explanation is given for why. In Re X & Y, Sir James Munby P considered whether paragraph 19 of Schedule 2 could apply to the temporary placement of children abroad, but declined to comment. Having regard to the specific issue raised in that case he was clear that paragraph 19 of Schedule 2 could not be used for the purposes of placement in secure accommodation outside England and Wales; he said this:

“It is difficult to see how the requirements of paragraph 19 of Schedule 2 to the 1989 Act will ever be satisfied where the child is to be sent out of the jurisdiction for the purpose of being placed in secure accommodation; and in the present cases they certainly are not. In the first place, unless dispensed with in accordance with paragraph 19(5), the consent of every person with parental responsibility is required. Secondly, unless dispensed with in accordance with paragraph 19(4), the consent of the child is required, and the child's consent cannot be dispensed with unless "the court is satisfied that the child does not have sufficient understanding to give or withhold his consent," and even then only if the child is to live "with a parent, guardian, special guardian, or other suitable person" – wording which, in my judgment, and notwithstanding Mr Rowbotham's (Footnote: ³⁰) submissions to the contrary, cannot include being placed in an institution such as a secure accommodation unit. "Person" here does not, in my judgment, extend to a corporate or other organisation or body. It means a natural person.” [29].

He added (at [30]), materially:

“Ms Cheetham (Footnote: ³¹) also suggests that the words "arrange for … [a] child in their care to live outside England and Wales" in paragraph 19(1) connote a permanent or at least long term arrangement, in contrast to a short-term placement in, for example, a secure unit. Ms Grocott (Footnote: ³²) makes the same submission. Mr Rowbotham begged to differ. There is no need for me to decide the point, which potentially has very wide ramifications, and I prefer not to” (emphasis by underlining added).

In a short judgment I delivered in 2017, in Northumberland County Council v VS and JP [2017] EWHC 2432 (Fam), a case which was similar factually to the instant case, I noted that paragraph 19 of Schedule 2 had been relied on by the court at an earlier hearing to effect a Scottish placement of an English child, and commented thus:

“[12] It is unnecessary for me to decide whether Schedule 2 paragraph 19 was ever the appropriate horse on which to run this particular application. Judge Moir thought it was. I, for my part, raise a question over whether or not a placement such as this represents an arrangement for a child 'to live' outside England and Wales, as when one looks more carefully in the language of Schedule 2 paragraph 19, there is a clear inference to be drawn that the giving of consent is a once and for all event. 'Has consented' is the phrase used, not 'does consent', an enduring state of affairs; the phrase used is more pertinent to a permanent arrangement 'to live' outside England than a temporary one for interim placement, in this particular instance, in a school for children with challenging behaviours.

[13] In the decision of Re X and Y [2016] 3 WLR 1718, the President of the Family Division considered whether Schedule 2 paragraph 19 would be the appropriate horse on which to run an application of this kind, but declined to make a decision or to even express a view. Similarly, I do not for my part need to conclude whether Judge Moir was wrong or that she was right, but I would say that had the application come before me, I would have been far more circumspect about reliance on this statutory provision.”

In Re C, the Court of Appeal did not in fact turn its mind specifically to whether paragraph 19 of Schedule 2 applied to temporary or interim placements out of the jurisdiction. The focus of the enquiry on the appeal was the issue of the child’s consent, and specifically whether placement in a residential home in Scotland was capable of satisfying the second condition in paragraph 19(4); that is to say, whether the words “live in the country concerned with … a suitable person” included living in a residential home (see Re C at [4], and see [38] above). The Court of Appeal concluded that paragraph 19(4) of Schedule 2 does not cover placement in a residential care home; it covers only placement with people (“parent, guardian, special guardian or other suitable person”). The result of this is that when a child does not consent “to living in that country”, and regardless of whether the child does or does not have sufficient understanding, the court is not permitted to approve their placement outside England and Wales other than with a natural person.

Giving the leading judgment in Re C Moylan LJ remarked (at [12]) that the child had been placed in Scotland “without the court’s approval having been obtained”. He addressed this point more fully later in the judgment at [39]:

“… as the Local Authority recognised, C should not have been placed in Scotland without the Local Authority having first sought and obtained the court's approval to the proposed placement. This was not merely a technical failing; it was a substantive failing. I would expect this Local Authority and, indeed, all Local Authorities to be aware of this obligation.”

I regard Moylan LJ’s comments set out in [44] above (i.e. the requirement for a local authority to obtain the court’s prior approval) as applying only to that particular class of case where paragraph 19 of Schedule 2 is actively engaged. I do not view his comments at [39] of his judgment as applicable to all proposed placements by an English local authority of one of its looked after children in Scotland, temporary or otherwise.

So, when is paragraph 19 of Schedule 2 CA 1989 actively engaged? In my judgment, this statutory provision is engaged only when an English (Footnote: ³³) local authority is making arrangements, as the statute specifically provides, for the child to ‘live’ abroad; that is to say, for a proposed long-term or permanent arrangement for a child’s future outside of the jurisdiction. It is not engaged in my judgment where the proposal of the English local authority is to place a child (Footnote: ³⁴) temporarily, or in the interim or short term, outside of England and Wales.

I reach the conclusions set out in [46] above for the following reasons:

The consent of the child in paragraph 19(3)(c) of Schedule 2 is consent “to living in that country” (emphasis added); this is different to consent to a particular placement. To my mind, this language contemplates the much wider context for the child of the consequences of expatriation – to a different culture / society / system of education or training (not to mention the losses he/she will suffer by leaving this jurisdiction), about which he/she could reasonably expect to be fully advised before considering whether to consent;

It is revealing to consider, by way of specific illustration on the facts of this case, the circumstances in which Henry’s views were taken (see [18] above). On the evidence before me, it appears that he had no real idea what he was being asked to agree to. Although he said he was “fine” about moving to the placement in Scotland, he had not visited it, and he knew little about it. In my judgment, the Local Authority should be cautious before placing much, if any, reliance on a young person declaring that they are ‘fine’ with a proposal; it is well-recognised that ‘fine’ is often used as a means of deflection, to avoid engagement on real feelings. If someone declares that they are ‘fine’, this may be a clue, I suggest, that the very opposite is true. In any event, it is reasonable to assume that almost any option offered by the Local Authority would have compared favourably with the situation in which he then found himself – placed as a sole young person in a caravan, supported by 2 staff members. Tested another way, what if the erroneous view that he was going to a ‘bad boys’ home had prevailed, and he had therefore objected to going? On the basis of the decision in Re C, it would not have been possible to progress with the placement:

“… when a child does not consent, and regardless of whether they do or do not have sufficient understanding, the court is not permitted to approve their placement in Scotland other than with a natural person” ([41]).

It cannot, in my judgment, be expected that this is the right context for collecting a crucial ‘consent’ (or conversely establishing a right of veto) of a child, where the temporary placement is in fact (as has proved to be the case) greatly in his interests;

Were the ‘consent’ provisions in paragraph 19(3)(c) of Schedule 2 to apply to temporary placements, it would mean that the child would paradoxically have a stronger right of veto over a temporary placement in residential care in a southern county of Scotland (which may be close, even very close, to his home in the North East of England) than he/she would (through his articulated wishes and feelings) over a temporary placement which may be many hundreds of miles away in a southern county of England;

In line with the point in (ii) above, paragraph 19 of Schedule 2 specifically excludes a placement under the secure accommodation regime, which is also by definition a temporary arrangement.

The views expressed above are consistent with the provisions 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 (‘the ‘Transfer Regulations 2013’) which appear to contemplate a degree of permanence in circumstances when paragraph 19 of Schedule 2 is invoked. Regulation 3 of the Transfer Regulations 2013 provides:

“Effect of care orders in England and Wales

“3 (1) This regulation applies where—

(a)

a child is subject to a care order made under section 31(1)(a) of the 1989 Act;

(b)

the court has given approval under paragraph 19(1) of Schedule 2 to the

1989 Act to the local authority (“the home local authority”) to arrange, or assist in arranging, for the child to live in Scotland;

(c)

the local authority for the area in which the child is to reside, or has moved to, in

Scotland (“the receiving local authority”) has, through the Principal Reporter, notified the court in writing that it agrees to take over the care of the child; and

(d)

the home local authority has notified the court that it agrees to the receiving local authority taking over the care of the child.

(2)

The care order has effect as if it were a compulsory supervision order.

(3)

In this regulation “court” means the court which has given the approval in terms of paragraph 19(1) of Schedule 2 to the 1989 Act.”

It is notable that the ‘transfer’ arrangements apply in Scotland only where a child is subject to a final care order in England and Wales under section 31(1)(a) and not an interim order under section 38. Under these regulations the receiving authority in Scotland “takes over” the care of the child, and the care order “has effect as if it were a compulsory supervision order”. Under paragraph 15 of the Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 “the care order, supervision order or education supervision order ceases to have effect for the purposes of the law of England and Wales” (Footnote: ³⁵).

I now turn back specifically to answer the second question. In my judgment, if the child who is to be placed temporarily in a residential children’s home outside of England & Wales but within the United Kingdom (i.e. as here, in Scotland) is the subject of an interim care order, the placement can be achieved under section 38, relying on section 33(7) and section 33(8) CA 1989; the details of the proposal for such a placement outside of England and Wales, but within the UK, would be contained in a relevant care plan. The care plan will doubtless be subject to careful scrutiny by the court, as Mr Wraith rightly suggested (see [21(ii)] above). In my view there is no need for a local authority to make specific application to the court for permission to place a child in interim care within the UK. It would however be prudent for the English court, at the time of making the interim care order, specifically to recite on the face of the order that it has considered the care plan for temporary placement in the UK/Scotland, so that the authorities in the relevant part of the UK are aware of the court’s endorsement of that arrangement.

Although outwith the particular circumstances of this case, I turn briefly here to address the situation if a local authority proposes to place a child who is subject of an interim or full care order outside of the United Kingdom (say, for instance, in mainland Europe), on a temporary basis. This could only be done, in my view, with the permission of the High Court exercising its inherent jurisdiction. While the inherent jurisdiction may be invoked in an apparently inexhaustible variety of circumstances, the Court’s powers to accede to the use of the inherent jurisdiction has its parameters (Footnote: ³⁶), and its use is at least in part materially curtailed by section 100 CA 1989. Section 100(4) CA 1989 is key. This provides:

“(4)

The court may only grant leave if it is satisfied that:

(a)

the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)

there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

(5)

This subsection applies to any order –

(a)

made otherwise than in the exercise of the court's inherent jurisdiction; and

(b)

which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).”

On the analysis provided above, the outcome which the Local Authority wishes to achieve could indeed be achieved under section 33(7). This allows for placement in Scotland under the aegis of an English interim care order, with the English Court retaining jurisdiction for Henry. It follows that I do not need to deploy section 100.

If I am wrong in the analysis set out above, and if there is in fact no statutory route to achieve the result which the Local Authority wishes to achieve, I can confirm that I would have had no hesitation in giving leave to the Local Authority to invoke the inherent jurisdiction to achieve the result contended for (see again Re X and Y at [47] quoted above).

These three related questions have equal, if not greater, importance to those which I have already discussed. For, as Moylan LJ observed in Re C at [42] (Footnote: ³⁷):

“… a court would clearly need to establish who would have parental responsibility or, in broader terms, legal responsibility, for a child before that child could be placed outside England and Wales”.

In my judgment, the answer to each of the questions posed above is ‘No’.

Let me start by disposing of the first limb of the three related questions posed above, by identifying various routes to recognition and enforcement of an English interim care order in Scotland which plainly do not apply:

This lacuna in the law, on which Sir James Munby P and Moylan LJ have earlier commented (see [6] and [7] above), is all the more striking, I suggest, given that a final care order made in England is capable of recognition and enforcement in Scotland; this is reflected in regulation 3 of the Transfer Regulations 2013 which I have cited in full at [48] above. As Sir James Munby P made clear in Re X and Y at [64]:

“The language of regulation 3(1)(a) is very precise and very clear. In my judgment it applies only where there is a 'full' care order made under section 31(1) of the 1989 Act. It does not apply to an interim care order made under section 38 of the 1989 Act”.

A further anomaly (if that is what it is) is revealed by the fact that there is a mechanism for a Scottish Court to make an interim or full compulsory supervision order (the equivalent of a care order), which contains a requirement for the child to reside a specified place, to determine that that place shall be in England or Wales (Footnote: ³⁹); that statutory provision “extends to England, Wales and Scotland only” (Footnote: ⁴⁰) (see the Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013).

The issues raised within each limb of the ‘third question’ are essentially matters of Scots Law. In this regard, I have been furnished with two pieces of relevant evidence in these proceedings:

The statement of Mrs S deals with authorisation for placement of an English child in a Scottish residential home, and as a corollary, recognition, and enforcement of any order under which he/she is placed. Mrs S said this:

“We have sought legal advice … and the advice states:

a)

We can place an English young person in Scotland as long as we have (1) a copy of the court order giving permission to place in Scotland and (2) a copy of the care order;

b)

We can place young people in Scotland with DOLs orders as long as we have (1) a copy of court order listing approved restrictions (2) Confirmation that the Local Authority is applying to the Scottish Court .

To confirm, we are now in a position to accept young people placed with a DOLS order in Scotland, as long as the placing authority has applied to the Scottish Courts for an order under the nobile officium, which our legal counsel has confirmed are not being opposed by any party. Our commissioning team will oversee this process and work with the Local Authority to ensure everything is in place before a placement is confirmed”.

In a later submission to the court (by e-mail dated 9 October 2020) Mrs S provided the written text of the ‘legal’ advice which had been provided to her by Mr T of the Care Inspectorate. The e-mail reads as follows:

“Regarding placements from England and Wales, this is what we have been advised:

According to English law:

•

a young person subject to a care order from England or Wales may only be placed in a care home service outwith England or Wales following a judgement that authorises this placement from an English or Welsh Court.

•

The young person must also consent for this to happen, but the Court can dispense with consent in certain circumstances, such as where the child cannot consent or withholds consent unreasonably.

We expect services to always, and only, accept the admission of a young person where the placing authority’s decision is legally compliant in the jurisdiction in which the placing authority operates.

We therefore expect care home services looking after a young person subject of a care order from England or Wales to have written evidence of both:

•

The court judgement that authorises a placement outwith England or Wales.

•

The young person’s consent, or the Court’s judgement dispensing the need for this consent.

We will therefore be checking at inspections whether young people on a care order placed from England or Wales are being cared for in the service. If they are we will expect managers to be able to explain how they or yourselves as a provider satisfied yourselves, prior to admission, that the child/young person was being lawfully placed by the placing authority. ( As per bullet points above)

If providers cannot evidence that the placing authority’s decision is legally compliant in the jurisdiction in which the placing authority operates this will be seen as an indicator of poor management and leadership and we will automatically assess Quality Indicator 2.3, “Leaders collaborate to support children and young people” as an additional QI. This is also likely to contribute to a Requirement being made resulting in a maximum grade of 3 and, if we were to find this is still a problem in subsequent inspections of any of your services, it would be likely to result in a weak grade for management and leadership”. (emphasis in the original).

This evidence does not, in my judgment, assist in answering any of the limbs of the third question:

I therefore turn to the advice of Mr Mitchell QC. He has expressed the views which appear in the following paragraphs.

First, he accepts that the voluntary arrangements put in place in respect of a ‘looked after’ child under section 20 Children Act 1989 would be respected as such in Scotland, albeit that the child would not become:

“… a ‘looked after’ child in Scots law, for the purposes of the 1995 Act, the Looked After Children (Scotland) Regulations

2009, SSI 2009/210, and the Children and Young People (Scotland) Act 2014, because it is an element of the definition that the child is looked after by a ‘local authority’ which means a Scottish authority constituted under section 2 of the Local Government (Scotland) Act 1994: see Children (Scotland) Act 1995 section 93. Certainly the child appears to remain a ‘looked after’ child in English law in terms of the Children Act 1989, and parts of the nexus of rights and duties which would flow from that status may well remain relevant (for example, to any question whether the local authority was in breach of its common law duty of care to the child)”.

On the issue of the purpose of ‘legal regulation’, or recognition, of the English interim care order in Scotland, Mr Mitchell QC opines:

“If its purpose is legal tidiness, to achieve a result in which the interim care order which regulates matters in England is replicated in Scotland, then certainly there is a lacuna and that problem could not be solved without a petition to the nobile officium, although I have to say that even then I am not at all clear what order might usefully be sought, as all that seems to be contemplated is a bare declaratory order that the interim care order was to be recognised in Scotland. But if its purpose is to protect [Henry’s] best interests and his rights, there is no apparent lacuna, any more than there was between August 2019 and July 2020. And section 11 (7) of the [Children (Scotland) Act 1995] does make clear in my opinion that the focus, and thus the purpose of legal regulation, must be on his best interests. In Cumbria and Salford and their lookalike cases which have been brought since 2016, the core order sought in the Court of Session was one authorising the deprivation of liberty which was perceived as necessary to protect not only the local authority but also care homes and their staff; that took matters beyond a classic best interests consideration, and the court was prepared in each case to accept that the child’s best interest was to be deprived of their liberty.”

But in this case, as Mr Mitchell rightly observes, there is essentially no current issue, as no party wishes to enforce it:

“… it is neither necessary nor appropriate for any application to be made to any Scottish court at this time. That is not because the orders made by the English court are entitled to be recognised in Scotland, they are not; it is because the parents parental rights and responsibilities are so entitled and there is at present no issue as to their exercise and in particular there is no issue as to deprivation of the child’s liberty. Nor is there any issue as to the powers of the managers of [Ossian House], who appear to be simply exercising their ordinary functions as providers of a residential care home under Scots law”.

He added later

“… there is nothing happening in Scotland which could be complained of as an interference with [Henry’s] rights or indeed anyone else’s rights. The unenforceability of the interim care order in Scotland would only matter if somebody wished to ‘enforce’ it in this country against somebody else’s wishes. But nobody does. It would be easier, I think, if that order were simply ignored for present purposes as an unnecessary complication: apply Occam’s razor. Without it, we have the simple position that the parents still have parental rights and responsibilities which Scots law will recognise in terms of sections 1 and 2 of the [Children (Scotland) Act 1995], because the only basis upon which it might be said that they have lost these is the interim care order”.

Thus, as Mr Mitchell observes above, if this were a case in which it was felt necessary to achieve recognition and/or enforcement of the order in Scotland, it would probably require a petition to the nobile officium of the Inner House of the Court of Session, “the extraordinary equitable jurisdiction vested in the supreme courts of Scotland” (Footnote: ⁴¹), for relief in that court. Mr Mitchell does not suggest that the Local Authority would not have ‘sufficient interest’ to be able to do so: per Lord Robertson in Beagley v Beagley 1984 SC (HL) 69 who said at p83:

“There is an inherent power in the Court of Session to exercise its nobile officium, as parens patriae jurisdiction over all children within the realm, and an application by anyone able to demonstrate an interest may bring a petition to the nobile officium if the interest of a child is involved or threatened.”

In my judgment, there is, currently, no benefit to the parties or to Henry in the Local

As this jurisdiction was discussed in the hearing, and alluded to in Mr Mitchell’s advice, it may be helpful to draw attention to two further points which emerged from the Cumbria CC & Others decision which may have some relevance to these facts:

MacDonald J helpfully discussed these issues at length in Salford CC v M (Deprivation of Liberty in Scotland) [2019] EWHC 1510 (Fam) (‘Salford CC’); this was cited by Mr Mitchell in the section quoted at [63] above. I do no more here than to highlight two of the key points which MacDonald J addressed in the concluding sections of his judgment as follows:

“[79] … whilst the English court has power to make [an order authorising the deprivation of the child's liberty made pursuant to inherent jurisdiction of the English High

Court]…, unless the Inner House of the Court of Session in Scotland agrees to invoke the nobile officium in respect of such a course of action, such placement may be without legal authority in Scotland.

“[80] … where there is demonstrated a prima facie /case that the nobile officium might apply to a particular type of order made under the inherent jurisdiction of the English High Court, and the balance of convenience favours an interim order pending full argument, the Court of Session is able, in an appropriate case, to grant interim orders under the nobile officium.”

Mr Donnelly appears to accept that it is currently unnecessary for his client authority to petition to the nobile officium; he points to the likely cost, delay, and uncertainty of outcome if the authority were to do so. This route would not even need to be considered, he observes, were there in place a coherent intra-jurisdictional legal framework between England and Scotland (and/or other jurisdictions of the UK) for dealing with jurisdiction, transfer of proceedings, recognition and enforcement in family proceedings. The point has considerable force, in my judgment, particularly given that any petition would be used simply to formalise arrangements in this case which are otherwise (a) lawful (the secure accommodation cases involved matters of personal liberty which, if left unauthorised, carried implications for the child and their carers), (b) agreed, and (c) have operated satisfactorily in meeting Henry’s welfare for a significant period.

What of the second limb of this third question? i.e. Whether the English interim care order give the English local authority any power to take any steps in relation to the child in Scotland. Although the answer is a straightforward ‘no’ so far as the Local Authority is concerned, it appears that the picture is rather different for Henry’s parents. Mr Mitchell QC advises that Henry’s mother and father, independently of each

I take from this advice, surprising though this may seem given the existence of the English care proceedings, that the parents could potentially litigate in the courts in Scotland in relation to matters of parental responsibility relating to Henry, provided that they could demonstrate that the issue litigated is, or issues are, matters concerning Henry’s “immediate protection” (section 14(3)(b) of the C(S)A 1995). This gives rise to the unwelcome possibility of concurrent litigation in Scotland and England – a situation which I trust would be avoided or averted by application of the 2018 Joint Protocol (Footnote: ⁴²) (applying in intra-UK border disputes the Principles for Direct Judicial

In relation to the third limb of the sub-questions (‘Does the English order give those providing the placement any authority over the child?’), the answer seems to be that the interim care order does not give the Scottish placement providers any authority over the child; their authority derives from their ordinary functions as providers of a residential care home under Scots law and the fact that Henry has been placed there with his parents’ consent.

A final thought. So far as I understand the parties’ positions. it is intended that Henry will retain his habitual residence in England, and will indeed return in due course to England; it is a case in which the Local Authority intends to continue to exercise parental responsibility for him with his parents at least for the time being. There is no intention to transfer responsibility for Henry to the Scottish local authority; nor would it be likely, or indeed necessary, that an equivalent order to an interim care order should be made in Scotland to achieve recognition. The scheme of the Children’s Hearings (Scotland) Act 2011 is one which does not contemplate concurrent litigation. In Salford CC MacDonald J noted (at [22](viii)) that the expert evidence obtained in those proceedings had concluded:

“It is unlikely that the Principal Reporter would conclude pursuant to s.66(2) of the Children's Hearings (Scotland) Act 2011 that it is necessary for a compulsory supervision order to be made in respect of M where she is already protected by an English interim care order.”

Even then there has to be agreement of the Principal Reporter of the receiving local authority in Scotland to “take over the care of the child” (regulation 3(1)(c) 2013 Regulations) and the ‘home’ local authority further agrees. In those circumstances, the care order takes effect “as if it were a compulsory supervision order”, and in those circumstances “the [English] care order…. ceases to have effect for the purposes of the law of England and Wales” (regulation 15 2013 Regulations). I am satisfied, on all that I have heard and read, that this is not what is desired here.

Where the provision for a child placed in residential care (whether in England or elsewhere) involves, or may involve, a deprivation of that child’s liberty (where the placement is not in secure accommodation as provided for in section 25 CA 1989), then the local authority would currently (Footnote: ⁴³) be expected to apply to the English High Court in the first instance for specific authorisation under the inherent jurisdiction to deprive the child of his liberty so as to render lawful that which would otherwise be unlawful by virtue of Article 5 of the European Convention on Human Rights: see, inter alia, Re T [2018] EWCA Civ 2136.

If an order authorising deprivation of liberty is granted in the English court, and if the placement is in Scotland, the same local authority would then need to petition the Inner House of the Court of Session in Scotland for orders under the nobile officium:

“… to find and declare that the measures ordered by the High Court in respect of [the child] should be recognised and enforceable in Scotland as if they had been made by the Court of Session” (see Cumbria CC & Ors at [35]).

It is well-known that there is no method by which a child's liberty can be lawfully deprived in the jurisdiction of Scotland in a placement which is not approved by the Scottish Ministers (see Salford CC at [17]).

I considered these very issues in Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 (‘Re RD’). The advocates in this case have relied on, and specifically referred to, my resumé of the law set out in [21]-[34] of that judgment; I see no need

In short, it is necessary to consider the three limbed test set out in the case of Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96, para 71, and 74 ("Storck"), a case which clarified that deprivation of liberty under Article 5 has three elements: (i) the objective element of a person's confinement to a certain limited place for a not negligible length of time; (ii) a lack of valid subjective consent to the confinement in question and (iii) confinement imputable to the state. In this case, I do not need to be troubled with (ii) or (iii). There is no real issue about consent: Henry cannot give consent as he is not deemed competent to do so, his parents cannot do so as Henry is the subject of an interim care order. There is no question but that the regime is imputable to the state. The real issue in the case is whether Henry’s confinement, objectively viewed, is under the complete supervision and control of those caring for him, where he is not free to leave.

On these facts, rather as in Re RD, I find myself focusing on (i). As to which, in Re RD I said this at [28]:

“What amounts to actionable confinement in (i) above has generated much jurisprudence both domestic and European. The considerable body of case law can be helpfully pared down for present purposes to 'the acid test' (the phrase used at [48]/[54]/[105] of Cheshire West) of whether a person is under the "complete supervision and control of those caring for her, and is not free to leave the place where she lives." The origin of this acid test has been extensively rehearsed in the authorities on this point (Footnote: ⁴⁴), and requires no reiteration here.”

In Re A-F [2018] EWHC 138 (Fam) at [33] Sir James Munby P considered various substantive and procedural questions in relation to the interface between care proceedings brought in the Family Court pursuant to Part IV of CA 1989 and the requirements of Article 5 of the Convention. Specifically, the circumstances in which Article 5 is engaged in relation to a child in the care of the local authority and, where Article 5 is engaged, what procedures are required to ensure that there is no breach of the requirements of Articles 5(2)-(4). He helpfully advised that:

“...whether a state of affairs which satisfies the "acid test" amounts to a "confinement" for the Storck component … has to be determined by comparing the restrictions to which the child in question is subject with the restrictions that would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability"”.

As it happens, no party contends now on the facts that Henry is deprived of his liberty at Ossian House, having regard to the specific regime under which he lives. This includes the following:

Henry’s liberty is undoubtedly restricted, but the parties agree that the degree or intensity of the constraints are not such as to amount to deprivation of liberty. The doors are not locked, and he is actively encouraged to leave the placement to participate in activities of his choosing. As Lord Kerr said in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another [2014]

It is neither appropriate nor necessary for me to say more on this issue. Had I found that Henry was deprived of his liberty, I would have had to consider if, as a matter of substance it is both necessary and proportionate, that is to say, the least restrictive regime which is compatible with the child's welfare; if so, then I would have had to consider adjourning the case in order to give the Local Authority the opportunity to petition to the Inner House of the Court of Session for the application of the nobile officium (see [67] above).

I summarise the answers to the questions posed above relating to Henry as follows:

As this judgment was in preparation, the Children’s Commissioner published a report entitled “Unregulated: Children in care living in semi-independent accommodation” (10 September 2020) which highlights the lack of capacity in children’s homes in England and Wales, and reveals how thousands of children in care in England and Wales are living in unregulated independent or semi-independent accommodation. The report records that “residential care is failing to deliver the right placements in the right areas to meet children’s needs”. I had cause to discuss one such young person in Re S (Child in Care: Unregistered Placement) [2020] EWHC 1012 (Fam) and in that judgment at [16]-[20] outlined the wider context of the problem; HHJ Dancey had similar cause to highlight the problem a few weeks later in Dorset Council v E [2020] EWHC 1098 (Fam), and Judd J similarly in Re Z (A Child: DOLS: Lack of Secure Placement) [2020] EWHC 1827 (Fam).

The problem encountered by the local authority in this case, as I mentioned in Re S (Child in Care: Unregistered Placement) and at [16] and [17] above, is not an uncommon one. There is a scarcity of suitable registered children’s homes in England and Wales, and local authorities, particularly those in the North and North-East of England, unsurprisingly look across the border to the number of high-quality residential resources there. A child placed in one of the southern counties of Scotland (i.e. Dumfriesshire, Kirkcudbrightshire, or Roxburghshire) could be much closer to his/her home in Tyneside, for example, than if he or she were placed in many parts of England and Wales.

The pressing need for more capacity in the system for residential care of teenagers in England and Wales is beyond doubt, and now publicly recognised. But I suggest that, given the number of cases of cross-border placements within the UK such as Henry’s, and as this case shows, there is also an increasingly pressing need for a clear and coherent statutory or regulatory framework for achieving intra-jurisdictional recognition and enforcement of interim public law orders within the UK.

In making this final point, I am doing no more than repeating a plea made by Moylan LJ in Re C, at [45] (Footnote: ⁴⁶), and by Sir James Munby P, in Re X & Y⁵⁰ at [74] that:

“…what now stand revealed are serious lacunae in the law which, I suggested, need urgent attention. If that is so, and I entirely recognise that others may take a different view, then the question rises as to how the problem should be addressed. On one view, it is the kind of problem which is admirably suited for consideration by a Law Commission – perhaps, given the subject matter, jointly by the Law Commission of

England and Wales and the Scottish Law Commission. That

is one possibility. No doubt there are others. But it seems to me that something really does need to be done”.

That is my judgment.