Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 92

P943/16

Lord Drummond Young

Lady Clark of Calton

Lord Malcolm

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in petitions

by

CUMBRIA COUNTY COUNCIL

Petitioner

for

The exercise of the nobile officium in relation to child X

STOCKPORT METROPOLITAN COUNCIL

Petitioner

for

The exercise of the nobile officium in relation to child J

BLACKPOOL BOROUGH COUNCIL

Petitioner

for

The exercise of the nobile officium in relation to child L

and

BLACKPOOL BOROUGH COUNCIL

Petitioner

for

The exercise of the nobile officium in relation to child Y

Petitioner:  JJ Mitchell QC, MacGregor;  Morton Fraser LLP 

First Respondent:  (Lord Advocate):  Burnet;  Scottish Government Legal Directorate

Second Respondent (Advocate General):  Webster;  Office of the Advocate General

19 October 2016

[1]        The petitioners are three English local authorities who have presented petitions to the nobile officium in respect of four children who are currently resident in secure accommodation in Scotland.  The problem confronting the court is as follows.  Children have been placed in secure accommodation by the High Court in England on the ground that such a course is necessary for their well-being.  At the time when the High Court made those orders there was a shortage of suitable accommodation in England for such children, but suitable accommodation for the four children was available in Scotland.  Consequently in each case the child was placed in secure accommodation in Scotland.  This, however, gave rise to a jurisdictional problem.  The cross-border recognition of orders relating to the custody and care of children is governed by extensive legislation, but that legislation contains a major deficiency, in that it makes no provision for the recognition in Scotland of English orders requiring that a child reside in secure accommodation.  The result, so far as the legislation is concerned, is that the orders that the High Court has made in the present cases are not effective in Scotland.  

[2]        Consequently, unless the Court of Session is prepared to intervene, the children are held in secure accommodation without legal authority.  This gives rise to a fundamental conflict:  the English courts have decided that it is necessary to keep the children in secure accommodation to ensure their welfare, but doing that without legal authority is a clear infringement of the children’s rights to personal liberty.  That raises an obvious conflict, between a child’s welfare and the child’s right to personal liberty.  That conflict can be shortly stated, but it is of fundamental importance.  The conflict creates a very obvious dilemma for the institutions in which the children are held:  unless legal authority is given in Scotland for the detention of the children those authorities will be acting illegally if they prevent them from absconding. 

[3]        In order to find a way out of this dilemma, the petitioners seek orders under the nobile officium to find and declare that measures ordered by the High Court of England and Wales for the placing of each child in secure accommodation in Scotland should be recognized and enforceable in Scotland as if they had been made by the Court of Session.  For the avoidance of doubt they seek further orders finding and declaring that each child may be detained in Scotland in terms of the orders made by the High Court of England and Wales, and any order continuing those orders, at the particular institution in which each child is currently held.  In each case the order is sought until any further order is granted by the Court of Session, but subject to any variation of those orders made by the High Court in England and Wales.

[4]        Counsel for the petitioners in three of the petitions, those by Cumbria County Council in relation to child X, Stockport Metropolitan Council in relation to child J, and Blackpool Borough Council in relation to child L, moved the court to make interim orders in respect of the three children to whom those petitions relate.  Thus the following discussion relates only to the granting of interim orders.  The child Y, who is the subject of the second petition by Blackpool Borough Council, is no longer in secure accommodation, and consequently no order is required in that case.  The petition of Cumbria County Council in relation to child X has been used as a test case, and the following discussion concentrates on that particular case.

[5]        We have been informed that the shortage of secure accommodation in England that gave rise to the present petitions is not an uncommon occurrence.  In his judgment in the English case In the Matter of X (A Child), [2016] EWHC 2271 (Fam), Sir James Munby P stated that at least five previous cases appeared to have occurred, and counsel for the petitioners informed us that he was aware of several other cases that were likely to present the same problem in the immediate future.  Furthermore, the ability to move children requiring secure accommodation from one jurisdiction to another enables the more efficient use of the accommodation that is available for such children.  Consequently the importance of the issues discussed extends beyond the facts of the present cases.  Submissions were made to the court by counsel acting on behalf of the Lord Advocate, representing Scottish Ministers, and on behalf of the Advocate General, representing the United Kingdom government.  We were informed that both Scottish Ministers and the United Kingdom government recognized the deficiencies of the existing legislation and that discussions had begun with a view to finding a permanent legislative solution for the problem.  We return to this issue at the end of this opinion.

The facts and the decisions of the High Court

[6]        The following summary of the facts concentrates on X, but the history of the two other children with which these applications are concerned, J and L, is for practical purposes similar.  X is a girl aged 16 who lives in the area of Cumbria County Council.  The Council began care proceedings in April 2015, and an interim care order was made in that month.  In the course of 2016 X’s behaviour deteriorated, and on 18 June a secure accommodation order under section 25 of the Children Act 1989 was made by Judge Forrester; that order authorized the Council to keep X in secure accommodation until 24 June.  The only available unit was in Scotland, and the judge was conscious that this raised jurisdictional issues.  She was also aware that Y’s case was due to be heard on 22 June, and consequently she time-limited the order and listed the case for hearing on 24 June.  The Council then applied for authority under the inherent jurisdiction of the English High Court to continue X’s placement in Scotland, and on 24 June Judge Forrester made an order giving the Council permission to invoke the inherent jurisdiction and ordered that X should be placed in secure accommodation at the unit in Scotland until 29 July.

[7]        Cumbria County Council’s application in respect of X, together with Blackpool Borough Council’s application in respect of Y, came before Sir James Munby P on 28 July, and the court was addressed about the difficult jurisdictional issues that had arisen in cases of this nature.  The judge came to the provisional conclusion that section 25 of the 1989 Act did not enable the court to make a secure accommodation order in relation to a placement in Scotland but that such a placement could, in an appropriate case, be authorized under the inherent jurisdiction of the court in relation to children.  Consequently an order was made under the inherent jurisdiction authorizing X and Y to continue to be placed in the respective units in Scotland until 1 September, with the matter being listed for further hearing on that date.

[8]        When the cases called again on 1 September Sir James Munby P informed the parties that he had come to a concluded view that section 25 of the 1989 Act did not enable the court to make a secure accommodation order in relation to a placement in Scotland but that, in an appropriate case, such a placement could be authorized under the inherent jurisdiction of the High Court.  He further stated that there was, so far as he could see, no mechanism for any such order to be recognized or enforced in Scotland in the absence of an order of the Court of Session, if that were competent.  It was clear that X needed to remain in secure accommodation, and consequently the order under the inherent jurisdiction was extended until 15 September.  On 12 September Sir James Munby issued a detailed opinion dealing with the cases of X and Y:  In the Matter of X (A Child) and In the Matter of Y (A Child), supra, in which he analyzed the jurisdictional and recognition problems that arose in cases of this nature.  The analysis that follows is based on that opinion, which has been of great assistance in explaining the issues that arise so far as the English courts are concerned.

The High Court’s reasoning

[9]        In his opinion Sir James Munby P drew the fundamental distinction between the question whether a court in country A (England) can make an order to take effect in country B (Scotland) and the question whether such an order will be recognized and enforced in country B.  A secure accommodation order involves a deprivation of liberty and thus engages Article 5 of the European Convention on Human Rights, which makes the problem of recognition particularly acute.  The English legislation is contained primarily in section 25 of the Children Act 1989 and regulations made under that section.  Section 25 permits the English courts to order that a child be kept in secure accommodation in England provided for the purpose of restricting liberty only if either of two conditions is satisfied:  first, that the child has a history of absconding and is likely to abscond from any other form of accommodation and to suffer significant harm if he absconds, or secondly, that the child is likely to injure himself or other persons if he is kept in any other description of accommodation.

[10]      The essence of secure accommodation is that a child may be detained in such accommodation against his or her will (or the will of his or her parents or guardians).  The concept of “secure accommodation” is developed in Regulation 3 of The Children (Secure Accommodation) Regulations 1991 (SI 1991/1505), as amended, which provides that accommodation in a children’s home shall not be used as secure accommodation unless it has been approved by the Secretary of State for such use, and such approval shall be subject to such terms and conditions as the Secretary of State sees fit.  Paragraph 19 of Schedule 2 to the 1989 Act permits an English local authority to arrange for any child in their care to live outside England and Wales with the approval of the court.  Nevertheless, the court is enjoined not to give its approval to such an arrangement unless it is satisfied that living outside England and Wales is in the child’s best interests, and that suitable arrangements have been or will be made for his reception and welfare in the country in which he will live.  More importantly for present purposes, paragraph 19 requires that the child, if he has sufficient understanding to give or withhold consent, has consented to living in the country concerned, and that every person who has parental responsibility for the child has consented to his living in that country.  Where a child lacks sufficient understanding to give or withhold consent to the arrangements, the court is empowered to give its approval if the child is to live in another country with a parent, guardian, special guardian or other suitable person.

[11]      The corresponding Scottish legislation is contained primarily in the Children’s Hearings (Scotland) Act 2011.  Sections 151-153 of that Act permit the making of a secure accommodation authorization.  Section 83 of the same Act permits the making of a compulsory supervision order, which may require that a child reside at a specialised place, and may authorize the person in charge of that place to restrict the child’s liberty to the extent that that person considers appropriate having regard to the measures included in the order.

[12]      After considering the legislation, Sir James Munby P concluded that a judge in England was unable to make a secure accommodation order under section 25 of the 1989 Act if the child were to be placed in a unit in Scotland, for two reasons.  First, on the face of the statute the English power in section 25 extends only to secure accommodation “in England” (or in appropriate cases “in Wales”).  Secondly, secure accommodation in Scotland is not approved by the Secretary of State in accordance with Regulation 3 of the 1991 Regulations; such accommodation in Scotland is approved by Scottish Ministers in accordance with the Secure Accommodation (Scotland) Regulations 2013 (SSI 2013/205).  On this basis, Sir James Munby P thought it difficult to see how the requirements of paragraph 19 of Schedule 2 to the Children Act 1989 would ever be satisfied where the child was to be sent out of the jurisdiction for the purpose of being placed in secure accommodation; in the cases under consideration those requirements were certainly not satisfied.  First, the consent of every person with parental responsibility is required by paragraph 19(5).  Secondly, the consent of the child is required unless it is dispensed with because the court is satisfied that the child lacks sufficient understanding to give or withhold consent, and even then only of the child is to live with a restricted class of persons, including a parent or guardian; these could not include an institution such as a secure accommodation unit.

[13]      On the basis that no relevant statutory power existed, Sir James Munby P considered the inherent parens patriae jurisdiction of the English High Court.  Following his earlier decision in Re PS (Incapacitated or Vulnerable Adult), [2007] EWHC 623 (Fam); [2007] 2 FLR 1083, he held that a judge might exercise the inherent jurisdiction of the court to direct that a child should be placed at and remain in a specified secure unit; the power extended to authorizing detention in such a place and the use of reasonable force, if necessary, to detain the child and ensure that he or she remains there.  The use of the inherent jurisdiction was consistent with the legislation in England and Wales governing orders relating to children.

[14]      It was, moreover, compatible with the principle of English law that the exercise of the prerogative is pro tanto ousted by any relevant statutory scheme.  In England and Wales the inherent jurisdiction is regarded as an exercise of the prerogative, vested in judges rather than ministers.  (The same is true of the Scottish concept of parens patriae, discussed below, but there are is at least a theoretical distinction from the Scottish concept of the nobile officium, which is regarded as a power inherent in the Court of Session and High Court of Justiciary as the Scottish supreme courts rather than an aspect of the prerogative).  In the cases under consideration, however, Sir James Munby P held that the English statutory scheme governing the placement of children was not intended to be exhaustive, as it did not cover placements outside England and Wales.  For these reasons he concluded that in principle a judge could exercise the English inherent jurisdiction to make an order directing the placement of a child in secure, or indeed non-secure, accommodation in Scotland, albeit that that would be outside the statutory scheme.  He noted however, that in any such case it was of particular importance that the place where the child was kept in secure accommodation should impose the minimum impediments on easy and regular access between the child and his or her parents, and that the order of the English court should facilitate easy and regular access between parents and child.

Recognition of the High Court’s decision in Scotland

[15]      Sir James Munby P then considered the legislation dealing with the cross-border effects of court orders, with particular reference to the position as between England and Scotland.  The Brussels Regulation commonly known as Brussels IIA is generally understood to have no application to issues arising between territorial units within the same member state of the European Union.  The authorities on this matter were helpfully reviewed in the opinion in In the Matter of X (A Child), and the conclusion was reached that the Regulation is of no assistance in relation to the recognition and enforcement of an English judgment in Scotland, or a Scottish decision in England and Wales.  We are in respectful agreement with that conclusion.

[16]      Legislation within the United Kingdom was then reviewed.  When a Scottish court made an order that a child should reside at a particular place in England or Wales, that order was enforceable in the courts in England and Wales by virtue of Article 7(2) of the Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 (SI 2013/1465), as supplemented by Articles 5, 8 and 9 of the same Order.  In relation to the converse situation, recognition and enforcement in Scotland of orders in family matters made by courts in England, there was markedly less statutory provision.  Scottish Ministers had made 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 (SSI 2013 No 99), but Regulation 3 of that statutory instrument applied only where a full care order had been made under section 31(1) of the Children Act 1989; it did not apply to an interim care order made under section 38 of the 1989 Act.  Nor did it apply to a secure accommodation order, whether made under section 25 of the 1989 Act or under the inherent jurisdiction of the High Court.

[17]      Consequently, none of the legislation considered provided for the recognition and enforcement in Scotland of any of the orders made or proposed to be made in the present cases; nor did it provide for the recognition and enforcement of any order made by an English judge under the inherent parens patriae jurisdiction.  So far as this court is concerned, we are unaware of any Scottish legislation that would permit the recognition and enforcement in Scotland of an order of the High Court in England and Wales placing a child in secure accommodation in Scotland.  It is noteworthy that none of the counsel who appeared was able to suggest any Scottish legislation that might be of assistance, despite the extensive research that they had carried out.

[18]      It was to deal with that situation that the suggestion was made in the English proceedings that the appropriate remedy in Scotland might be a petition to the nobile officium.  Sir James Munby P expressed the view that this appeared to be the only way in which the present matters could be taken forward.  He noted that, if such a remedy were not available, the English court would have to consider whether it was appropriate to make any order for the placing of children in secure accommodation in Scotland.  Furthermore, because this area of law is governed by Article 5 of the European Convention on Human Rights, any deprivation of liberty required to be subject to regular judicial monitoring and review.  That raised a potentially difficult question as to whether in such a case that judicial function should be vested in the English court or the Scottish court, or under some joint arrangement.  In favour of the English court was the fact that it was the court responsible for the existing proceedings; in favour of the Scottish court was the fact that it was the court that would have to be responsible for enforcing the secure accommodation orders, if need be by the use of coercion.

[19]      A petition to the nobile officium has now been presented to this court, and accordingly we now consider the competency of that remedy.  In doing so, we are conscious that the present petitions are only for interim orders.  Consequently it is unnecessary for us to reach a definitive determination as to the competency and applicability of the nobile officium, although we must be satisfied that a prima facie case exists for such a remedy.

The nobile officium

[20]      The nobile officium is the extraordinary equitable jurisdiction vested in the supreme courts of Scotland, namely the Court of Session and the High Court of Justiciary.  In civil matters, it permits the Court of Session to provide a remedy in cases that are not covered by existing law or legal norms.  It is equitable in nature, and to that extent the court enjoys a substantial element of discretion in its application.  It was described by LP Hope in R v Kennedy, 1993 SC 417, in the following terms (at 421):

“The power may be exercised in highly special or unforeseen circumstances to prevent injustice and oppression.  If the intention of the statute is clear but the necessary machinery for carrying out that intention in special or unforeseen circumstances is lacking, a power may be invoked to provide that machinery… But the power cannot be exercised in such a way as to conflict with or defeat a statutory intention, express or implied.  Nor may it be invoked to extend the provisions of an Act of Parliament, such as by supplementing the statutory procedure by what would, in effect, be an amendment of the statute…”.

We would qualify that statement of the law by indicating that the nobile officium is most commonly used in practice to deal with unforeseen circumstances, or circumstances that have not been adequately foreseen, rather than circumstances that can be described as “highly special”.  In some areas the nobile officium has been used on a regular basis to provide a remedy for changes of circumstances that have not been adequately foreseen.  An example is the use of the jurisdiction to permit the purposes of public (including charitable) trusts to be amended to deal with changes of circumstances (the cy-près jurisdiction), provided that strong or compelling expediency can be shown.

[21]      We would make two further observations about the nobile officium at a general level.  First, because of the underlying equitable nature of the jurisdiction, we are of opinion that it is no bar to its application that no precedent exists that is applicable to the precise circumstances of the case.  That conclusion is supported by the fact that the primary use of the jurisdiction is to deal with unforeseen circumstances, which obviously may be unprecedented.  Nevertheless, before the jurisdiction is exercised, the court will normally consider whether there has been an analogous application in the past, and if there has that will support the exercise of the jurisdiction.  If there has been no previous analogous decision, however, that is not decisive:  in such a case the court must decide whether injustice and oppression will result if it does nothing, and if that is so there is clearly a good case for the invocation of the jurisdiction.  On the applicability of precedent to the nobile officium, we should record that we have obtained great assistance from the discussion at pages 241-252 of Professor Stephen Thomson’s work, The Nobile Officium, the first monograph to be published on the subject.

[22]      Secondly, in view of the equitable nature of the nobile officium, we are of opinion that it should be used in a practical manner, to address the particular situation that is either unprecedented or has not been adequately foreseen.  Cases of the latter sort can result from the failure of those involved in a particular transaction to foresee what might happen, as with the cy-près jurisdiction, or with the general failure of established law or existing statutes to deal with a particular situation.  In either event, the focus should be on providing a practical and workable solution to the problem that has arisen.

[23]      Two particular categories of case where the nobile officium has regularly been invoked are relevant to the present applications.  The first is where a casus improvisus arises in a statute or statutory scheme.  This is a classic example of the use of the nobile officium to deal with unforeseen circumstances, or circumstances that have not been adequately foreseen, and it is vouched by a substantial number of authorities:  examples include Maitland, Petitioner, 1961 SC 291; McLaughlin, 1965 SC 243, per LP Clyde at 245; and R v Kennedy, supra, per LP Hope at 421; and other cases are discussed in Thomson, op cit, at pages 136-160.  Frequently the power is exercised to provide machinery that is lacking from the statutory scheme, to ensure that that scheme is effective at a practical level.  The jurisdiction is also used to deal with cases where statutory machinery has failed to achieve its anticipated result and no adequate provision is made in the statute for such a breakdown.

[24]      The court’s power is nevertheless confined to casus improvisi in the true sense of that expression, that is to say, cases that have not been foreseen and therefore have not been provided for:  Trayner, Latin Maxims and Phrases (4th ed) at 70-71.  It does not extend to cases where the statutory omission is a deliberate feature of the scheme of the legislation;  to intervene in such cases would involve the court’s trespassing on the province of the legislature.  In R v Kennedy, in the passage cited above, LP Hope states that the nobile officium “cannot be exercised in such a way as to conflict with or defeat a statutory intention”.  Thus in every case it is necessary to determine whether an omission in a statutory scheme is unforeseen and essentially accidental, in which case there is a casus improvisus and the jurisdiction may be invoked, or is an intentional part of the scheme.  The jurisdiction cannot be used to disregard deliberate features of the scheme.

[25]      The second category of case where the use of the nobile officium is relevant to the present case is where it has been used to safeguard the welfare of children.  In Beagley v Beagley, 1984 SC (HL) 69, Lord Robertson stated (at page 83):

“There is an inherent power in the Court of Session to exercise in 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 interests of a child are involved or threatened”..

The parens patriae jurisdiction appears to have had a different origin from the nobile officium; the former was technically derived from the Court of Exchequer in Scotland, which in turn derived the jurisdiction from the Crown, whereas the latter is part of the inherent powers of the Court of Session as the supreme civil court in Scotland:  Thomson, op.  cit, at 118-121; Law Hospital NHS Trust v Lord Advocate, 1996 SC 301, per LP Hope at 314, Lord Clyde at 324 and Lord Cullen at 328.  Nevertheless, in practice, the parens patriae jurisdiction is generally subsumed into the nobile officium.

[26]      At a practical level, the need for a legal mechanism to secure the welfare of children is very obvious, and the parens patriae jurisdiction has developed in parallel in both Scotland and England and Wales to achieve this end.  This is well illustrated by the present proceedings.  The jurisdiction may apply to a wide range of cases, in greatly varied circumstances.  The critical objective is to ensure the welfare of the child concerned, in the particular circumstances which have arisen.  This requires a practical approach, so that procedural niceties are not allowed to stand in the way of the fundamental policy that underlies the jurisdiction. 

[27]      A further factor that is relevant to the nobile officium in cases such as the present is the impact of Article 5 of the European Convention on Human Rights.  Article 5 confers a right to liberty and security of the person (a right which is of course well provided for in the common law).  Only limited derogations are allowed, which include the detention of a minor by a lawful order for the purpose of educational supervision.  That exception is subject to the important limitations of legality and proportionality.  So far as legality is concerned, it is essential that the restriction of liberty should be authorized by proper legal procedure.  That means that, in any case where the detention of a minor is required, an order of the court or other competent authority is essential.

Application to the present cases
Prima facie case

[28]      In our opinion the present cases disclose a clear prima facie case for application of the nobile officium.  In the first place, we consider that the legislation governing the cross-border recognition of court orders relating to the placing of children in secure accommodation does not cover the case where an English court makes an order that a child should reside in secure accommodation in Scotland.  If the order had been that the child should reside in secure accommodation in any European Union country outside the United Kingdom, the Brussels II Regulation might apply, but it is generally accepted that that Regulation has no application as between different territorial divisions of the same state.  So far as United Kingdom legislation is concerned, a Scottish court order that placed a child in secure accommodation in England or Wales would be enforceable in England and Wales by virtue of Article 7(2) of the Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 (SI 2013/1465), as supplemented by Articles 5, 8 and 9 of the same Order (see paragraph [15] above).  In the opposite direction, , no provision is made in any legislation for the recognition in Scotland of an order for placing a child in secure accommodation made in England or Wales.  The applicable provision, 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 (SSI 2013 No 99), only applies to full care orders, and does not apply to secure accommodation orders, including such orders made under the parens patriae jurisdiction of the High Court. 

[29]      The primary legislation governing the recognition of court orders made in England and Wales by courts in Scotland is found in the Civil Jurisdiction and Judgments Act 1982.  Section 18 of that Act provides for the enforcement of certain judgments made by courts within the United Kingdom in other parts of the United Kingdom.  The section specifies the judgments that are governed by it, which include those of the English High Court.  Nevertheless, section 18(5)(d) as amended excludes any judgment which “is a provisional (including protective) measure other than an order for the making of an interim payment and an interim order made in connection with the civil recovery of proceeds of an unlawful conduct”.  We think it likely that the orders of the High Court in respect of X, J and L are properly to be regarded as provisional or protective orders.  Thus they are excluded from the effect of the 1982 Act.  Furthermore, a practical difficulty arises if the 1982 Act is used to enforce the English decisions.  Registration for recognition and enforcement under that Act can only take place after the period for the lodging of an appeal has expired; that is a period of 21 days in the case of orders such as those presently under consideration.  We were informed by counsel for the Lord Advocate that in cases where children must be placed urgently in secure accommodation such a delay would render the remedy ineffective.  We are bound to say that in a case involving such a fundamental right as personal liberty any such delay would be unacceptable as a matter of general law.

[30]      The provisions discussed in paragraph [28] were reviewed by Sir James Munby P in his opinion in In the Matter of X (A Child), and he concluded that there appeared to be a gap in the legislation.  We are in complete agreement with that conclusion.  We are unaware of any provision in Scots law that ordains the recognition in Scotland of a secure accommodation order made by the English courts.  Counsel for the petitioners and for the Lord Advocate and the Advocate General reviewed the law for the purposes of the present applications, but none of them was able to point to any provision that ordained recognition of an English order.  In these circumstances we conclude that there is a clear casus improvisus in the legislative scheme governing the recognition of court orders relating to children as between Scotland on one hand and England and Wales on the other.  We can discover no sensible reason for such an omission.  The converse case, recognition of a Scottish order in England and Wales, is the subject of express provision.  Recognition as between the jurisdictions of the United Kingdom on one hand and other jurisdictions within the European Union on the other is also catered for, albeit under European Union rather than domestic legislation.  The existence of those provisions indicates an obvious need for express recognition in any case where a child is placed in secure accommodation by virtue of a court order made in another jurisdiction.  Furthermore, that need for express recognition is underlined by the requirement of legality in Article 5 of the European Convention on Human Rights, which specifies that any restriction of liberty should be in accordance with a procedure prescribed by law.  That means that any restriction on a child’s liberty, which is inevitable with a secure accommodation order, must be the subject of express legal authorization.  It seems probable that those responsible for formulating legislative policy did not foresee the need for express recognition, and that is a clear and straightforward example of a casus improvisus.

[31]      We are further of opinion that the application of the nobile officium in cases such as the present is also justified by the parens patriae jurisdiction.  Under that jurisdiction the Court of Session has a duty to safeguard the interests and welfare of any child in Scotland.  In the present cases children have been placed in secure accommodation in Scotland by the High Court in England in order to ensure their welfare, for reasons that are explained at length in the decisions of the High Court and accompanying papers.  In order to make those decisions effective, and thus secure the welfare of the children, it appears to us to be imperative that the Court of Session should make use of the parens patriae jurisdiction to ensure that the children are properly looked after, in secure accommodation, and to provide proper legal authority to achieve that end.

[32]      Scottish legislation exists to deal with children in need of care, but we are satisfied that this does not provide a suitable alternative to the use of the nobile officium.  We were referred specifically to the Children’s Hearings (Scotland) Act 2011 and associated subordinate legislation.  It is unnecessary to consider this legislation in detail, because it is clear that it would be of little or no assistance in the present cases.  First, certain of the children concerned, including child X, are aged 16 or over and are therefore not “children” for the purposes of the legislation in question.  Secondly, the use of Scottish procedures for children referred to Scotland by the courts of England and Wales raises significant questions of jurisdiction for the sheriffs who might have to hear such cases. 

Balance of convenience

[33]      The second requirement for an interim order under the nobile officium is that the balance of convenience should favour the making of such an order.  In the present case we are of opinion that the balance of convenience clearly favours the making of an order.  The circumstances of the individual children concerned are set out in the papers that accompanied the petitions for the exercise of the nobile officium.  For present purposes it is not necessary to set these out in detail.  We record, however, that in each case we find that the circumstances disclosed clearly justify the making of secure accommodation orders.  For example, in relation to child X, who is currently resident in a secure unit in Edinburgh, it appears that the child has a history of absconding from accommodation in which she is placed, and that if she does so she is likely to suffer significant harm.  In the event that she absconds, it is thought likely that she would attempt self-harm and that she might even attempt suicide, both of which have occurred previously.  Consequently the ability to detain X within secure accommodation, to prevent from absconding, is essential in the interests of her welfare.  The same is generally true of the children J and L, to whom the other applications relate.  In each case, we note that the High Court in England has concluded that detention in secure accommodation is essential in the child’s welfare, and we consider that we should respect those determinations, both out of comity and because the English court has had an opportunity to examine the detailed circumstances of each child in greater detail than has been possible in this court.

Conclusion

[34]      For the foregoing reasons we are of opinion that the petitioners have demonstrated a prima facie case for the making of the interim orders sought, which are to find and declare that the measures ordered by the High Court in respect of each child should be recognized and enforceable in Scotland as if they had been made by the Court of Session.  The same applies to the further orders sought, namely that for the avoidance of doubt it should be found and declared that each child may be detained in Scotland in terms of the orders made by the High Court, and any continuation of those orders, at the particular institution in which each child is currently held.  We are further satisfied that the balance of convenience clearly favours the making of such interim orders.  For this reason we have granted interim orders in terms of the prayer of each petition.

[35]      As we have noted, submissions have been presented on behalf of both the Lord Advocate and the Advocate General.  Neither opposed the making of the interim orders sought, and both recognized the force of the problems that are focused by the decision of the High Court in In the Matter of X (A Child), supra.

Further issues

[36]      A number of further issues arise which call for discussion.  In the first place, the four applications to the nobile officium with which this opinion is concerned are the first to come before the Court of Session to enforce orders of the High Court in England and Wales for the placing of a child in secure accommodation in Scotland.  We were informed, however, that a considerable number of similar orders have been pronounced by the High Court, and that further applications relating to those orders can be expected.  If that happens, it can be expected that our present decisions will be followed.  Nevertheless, a clear casus omissionis has been demonstrated in the legislation governing the recognition of orders placing children in secure accommodation.  Such orders are not unusual, and are clearly of the utmost importance for the children concerned.  In these circumstances the court trusts that urgent consideration will be given to filling the gap in the legislation will by proper provision.

[37]      We were informed that officials of the Scottish and United Kingdom governments have held discussions about the possibility of promoting new legislation to address the anomaly in the existing legislation.  The provisional view of both administrations is that the best way to resolve the problem would be primary legislation in the United Kingdom to amend section 25 of the Children Act 1989.  Because such legislation would make provision in relation to Scotland in respect of a devolved matter, it would require a legislative consent motion in the Scottish Parliament.  In view of the need for action in both the Scottish and United Kingdom Parliaments, the Lord Advocate was not in a position to give undertakings about the timing or outcome of the current discussions.  That is understandable; the decision as to whether such legislation should be enacted is ultimately a matter for the two Parliaments, and for them alone.  We would, however, express our strong hope that such legislation will be promoted and passed at the earliest possible opportunity, for three reasons.  First, if nothing is done, it is likely that repeated applications to the Court of Session will be required to cover every case where the English High Court places a child in secure accommodation in Scotland; such cases are likely to recur regularly.  That situation clearly calls for a statutory remedy.  Secondly, there is an obvious lacuna in the existing legislation, in the manner that we have discussed previously.  Filling that lacuna should be neither difficult nor time-consuming.  Thirdly, what is at stake is a matter of personal liberty:  the detention of children placed in secure accommodation.  We consider that all branches of government should do their utmost to ensure that any deprivation of personal liberty is properly authorized and regulated by law.  In cases such as the present, that appears to us to require legislation along the lines suggested by counsel for the Lord Advocate.

[38]      We note that Sir James Munby P in his opinion in In the Matter of X (A Child), supra, expressed the view that something had to be done to address the problems of the existing legislation.  He suggested a joint reference to the Scottish Law Commission and the Law Commission of England and Wales.  If it were not for the statements made to us on behalf of the Lord Advocate about proposed legislation, we would have concurred with that suggestion.  As it is, however, as discussions are in progress between the Scottish and United Kingdom governments about remedying the problem in the legislation, a reference to the Law Commissions should not be necessary.

[39]      Finally, we note that Sir James Munby P raised a further question for future consideration.  The area of law at stake in these proceedings is governed by Article 5 of the European Convention on Human Rights, which requires any deprivation of liberty to be subject to regular judicial monitoring and review.  That raised the difficult question as to whether that function should be vested in the High Court in England and Wales or in the Court of Session, or jointly in both courts.  This is, we suspect, an issue that will require to be addressed in the proposed legislation.  Sir James Munby indicates the considerations on each side.  In favour of the English court is the fact that that is the court seised of the care proceedings, which therefore has responsibility for every aspect of the child’s welfare.  In favour of the Scottish court is the fact that it has the responsibility of enforcing the secure accommodation orders, if need be by the use of coercion.

[40]      We see the force of this question, and somewhat tentatively we suggest that it might be resolved as follows.  The English court is the court that is primarily concerned with the welfare of the child, who was resident and domiciled in England at the time when the proceedings were initiated.  That court accordingly has the continuing responsibility for ensuring that the child is properly cared for, and on that basis it would seem that it is the court that should be primarily responsible for the regular judicial monitoring and review of the placing of the child in secure accommodation.  Nevertheless, questions may arise as to the care and control of the child in Scotland; this applies in particular to the enforcement of the secure accommodation order, especially if the child should abscond.  It seems appropriate that these matters should fall within the jurisdiction of the Scottish courts, because they relate to events that take place in Scotland.  Furthermore, emergency measures may be required, and the Scottish court as the local court is in a better position to provide a remedy quickly and to secure its enforcement, without cross-border complications.

[41]      We think that it should be possible to frame legislation in such a way as to recognize these two considerations; the fundamental distinction is between the overall responsibility for the welfare of the child and the making of general orders to secure that welfare on one hand and the particular task of enforcing those orders on the other hand.  This probably means that a challenge to the existing arrangements should be competent in either jurisdiction; the personal liberty of the child is at stake, and an urgent remedy could conceivably be required.  So far as the Scottish courts are concerned, however, it is likely that any remedy will be of an essentially interim nature, leaving it to the English courts to decide the fundamental questions as to the welfare of the child and whether and on what terms any secure accommodation order should be continued.  To the extent that any conflict arises, we are sure that it can be resolved with appropriate courtesy and common sense.