Faculty seeks long term fix for placed English children

Long-term solutions are required to address instances where residential care services in Scotland receive cross-border placements of children and young people subject to English High Court deprivation of liberty orders, the Faculty of Advocates believes.

A shortage of appropriate accommodation in England has led to a series of such placements in Scotland, which without an order of the Court of Session are, in effect, unauthorised in law, since the High Court cannot on its own authorise detention outside England & Wales. At present this has to be achieved, in the absence of any other prescribed procedure, by three judges hearing a petition to the nobile officium, a mechanism accepted to be unsuitable.

In a response to a request for comments from the Scottish Government, Faculty raises concerns that focusing on better short-term solutions "may make the problem of such placements worse, in the sense of making them more common in practice".

It adds: "The policy paper is correct to spell out that the best interests of children should be central. It might be added, because it is not spelt out, that the voice of the child should also be central; these children are effectively being deprived of a chance to be effectively heard on the conditions of their care and detention. At present, they are told they must instruct Scottish solicitors and counsel for the Inner House; a very few do so, but for most this is an empty right.”

A few such placements had been appropriate, e.g. children from Cumberland placed in Dumfries, Faculty states. However, such proximity is rare, as most placements are "emergencies driven by the impossibility (real or perceived) of finding an appropriate placement in England & Wales".

While the primary supervising authority should be the English one acquainted with the particular case, especially as many of these placements only last a few weeks or months, all such cases should be made known to the Scottish authority, otherwise children might be in care in Scotland for years, unknown to the Scottish authority.

However, Faculty believes it should be a condition of all such cross-border placements that, particularly where children are being deprived of their liberty, they should be brought before a children’s hearing in Scotland. "The child would get a right of audience, and the Scottish Children's Reporter Administration would be aware of matters. There could be proper discussion in a way that the English High Court would struggle to do from afar."

Click here to access the full response.