Article 39’s response to Scottish Government’s Cross-border placements of children and young people into residential care in Scotland: policy position paper

  1. Article 39 is a small, independent charity which fights for the rights of children living in state and privately-run institutions (boarding and residential schools, children’s homes, immigration detention, mental health inpatient units and prisons) in England.

  2. We are deeply concerned about the Scottish Government’s proposal to make it administratively easier for local authorities in England (and Wales) to place highly vulnerable children in accommodation in Scotland, where they are deprived of their liberty.
     
  3. In addition to severe restrictions on the child’s exercise of their personal autonomy, which in and of itself can be extremely frightening and debilitating, being sent many miles from their families, friendship circles and communities risks causing serious and enduring harm to children.
     
  4. The Scottish Government appears not to have published a children’s rights impact assessment or an equality impact assessment with its proposals, which clearly engage a number of rights and protections within the European Convention on Human Rights/Human Rights Act 1998, the Equality Act 2010 and the United Nations Convention on the Rights of the Child.
     
  5. The published proposals fail to provide vital background information, such as how many children from England in the past three or five years have been sent to Scotland for the purposes of deprivation of liberty; the characteristics of these children; how long they stayed in the accommodation; the impact on children’s family relationships, education and health treatment; and children’s views and experiences of being sent to Scotland, their time in Scotland, and leaving (or staying in) Scotland.
     
  6. It is similarly important for policy makers in both Scotland and England to publish what they know of the providers of such accommodation, and official assessments of the quality of care and protection received by children, including any concerns raised and complaints made about the treatment of children. 

  7. Without the critical information set out above, it is impossible to make a reasoned assessment of the extent to which children’s rights can be protected should the Scottish Government make it administratively easier for English local authorities to send children to Scotland for deprivation of liberty. It is similarly impossible to properly consider the types of safeguards which children in these situations require, in order to avert breaches of their human rights, should the process become administratively easier, or remain as now.

  8. Furthermore, the ‘consultation’ period is extremely short – just 22 days – and there does not appear to have been accessible information published for children and families potentially affected by the proposals. In November 2020, Article 39 secured a very significant Court of Appeal judgment affirming government consultation duties in respect of children in care. The Secretary of State for Education was found to have acted unlawfully by not consulting the Children’s Commissioner for England and other organisations representing the rights and interests of children in care.[1]

  9. The English courts are increasingly resiling from making deprivation of liberty orders in respect of children in dire need, when such action is clearly not in the best interests of the individual child and is, instead, being pursued in conditions of crisis. Giving judgment in December 2021, on whether a 14 year-old girl (looked after from the age of 6/7 years) could continue to be deprived of her liberty on a hospital ward alongside children receiving palliative care and other medical treatment, in circumstances where she was having to be frequently restrained (including by sedative) and was routinely self-harming, Mr Justice Holman stated: 

The fact of the matter is that there is a grave, and now scandalous, shortage of suitable establishments in this country where very troubled children such as this child can be kept safe whilst respecting their dignity and, so far as possible, their liberties. However, it needs clearly to be understood by this local authority, and by all local authorities, that the court itself does not have any resources at all available to it, nor a cheque book. I cannot myself find or create any solution in this case; but I am, frankly, not prepared simply to rubber stamp what the local authority and the other parties all know to be an unlawful situation at the moment in the present case.[2] [Our emphasis].

  1. Although still part of the United Kingdom, in respect of child law, education and health care, Scotland is a separate jurisdiction. Amidst a background of substantial reductions in child welfare provision (16 secure children’s homes were closed between 2002 and 2021), the UK Government has grown dependent upon Scotland to provide emergency care and protection to children in our country who are in desperate need. Should Scotland continue to prop up a child welfare system in England which has been hollowed out through austerity, the scale and depth of unmet need will continue to elude the UK Government. Further, what happens when Scotland runs out of capacity to come to the assistance of English local authorities? 

  2. If Scotland changes its law to make it administratively easier for children from England to be deprived of their liberty there, what is to stop the UK Government, at some point in the future, looking to another jurisdiction upon which to outsource its obligations towards children? The principle would have been firmly established that it is legitimate for children from England to be sent to another country, for the purposes of being deprived of their liberty, and that legal safeguards can be removed or weakened in order to make this process easier. 

  3. The Scottish Government previously, in 2016, supported the UK Government’s hasty amendments to the Children Act 1989 which made it easier for looked after children to be deprived of their liberty under section 25 of that legislation. Looked after children affected by these changes lost very significant safeguards:
    • The longstanding duty on local authorities, dating back to 19th Century poor law legislation, to obtain consent from children placed abroad (outside England and Wales) was removed in respect of those children detained in Scotland under section 25. (The duty to obtain consent from those with parental responsibility for a placement in Scotland/abroad was also removed).[3]
    • The legal requirement to appoint three people, one of whom must be independent of the local authority, to review the child’s detention in secure accommodation was removed in respect of children sent to Scotland under section 25.[4]

  4. There was no public consultation in England and very little parliamentary debate. The Children’s Commissioners in England and Scotland were not consulted. The Scottish Government at the time indicated this measure was a permanent solution, and that it would resolve (or at least reduce) reliance on the use of inherent jurisdiction by the High Court and Court of Session. In a December 2016 memorandum, the Scottish Government stated:

The Scottish Government agrees the amendments [to the Children Act 1989] are necessary to fill the legislative gap in the law for cross-border secure placements, as identified by the High Court in England and the Court of Session. Whilst a legal basis is currently being provided for such placements on an interim basis by the High Court and Court of Session [this] permanent legislative solution is required. 

[…]

Scottish Government officials and their counterparts in Department for Education have explored a number of possible legislative options, but consider UK primary legislation to be the comprehensive way forward as it was the only way of amending section 25 of the 1989 Act so that it allows English or Welsh courts to place children in Scotland. The Bill provides a timeous solution capable of dealing with both reserved and devolved aspects in a single legislative vehicle.[5][Our emphasis].

  1. Article 39 warned in 2016 that these hurried changes did not address the underlying causes, which is the chronic lack of suitable provision for highly vulnerable children and insufficient social protection when children and families are first struggling with trauma and extenuating needs. That the Scottish Government is now, five years later, offering another legislative ‘solution’ once again exposes the systemic underlying issues in England. These will not be addressed by easing the legal processes for public authorities. In October 2021, the Competition and Markets Authority reported that: 

Ofsted told us that it does not believe local authorities [in England] are able to meet their sufficiency duties as indicated by, among other things, the use of unregistered provision, the number of children waiting for secure places, and the lack of appropriate provision for children with complex needs.[6]

  1. In many respects this latest development carries greater risk for children since the use of inherent jurisdiction is not confined to particular (regulated) establishments and experienced children’s residential care providers (as those running secure units are). Children from England can, theoretically, be deprived of their liberty in any type of accommodation run by any type of provider in Scotland, so long as the High Court and the Court of Session authorise this. As stated above, the courts in England are increasingly refusing such applications. However, where orders have been granted judges have often expressed deep frustration and concern at the lack of suitable provision for children in England. For example, in February 2021 Mr Justice MacDonald, providing the fourth judgment in respect of a highly vulnerable girl, described being “reduced to little more than a rubber stamp in circumstances where … the continuing lack of options before the court essentially obviates the courts ability to apply the welfare test”.[7]

  2. Mr Justice MacDonald concluded his judgment in stark terms:

As a judge, I must assiduously avoid involving myself in matters that are properly the purview of Parliament.  Likewise, the judicial role is not that of the polemicist.  I have however, taken the judicial oath.  In doing so (and as recalled by Sir James Munby P in a similar case in Re X (A Child)(No 3) [2017] EWHC 2036 (Fam)) I promised to do right by all manner of people according to the laws and usages of this realm.  It is very hard, if not impossible, to do right by G, to keep her safe and to work to relieve her enduring and acute emotional pain, when the tools required to achieve that end are simply unavailable to this court.  As I have commented in my previous judgments, this places the court in the invidious position of being required by the law of this realm to make decisions that hold G’s best interests as the court’s paramount consideration but being effectively disabled from doing so by an ongoing and acute lack of appropriate welfare provision for a constituency of the country’s most needy, most vulnerable children. [Our emphasis].[8]

  1. We urge the Scottish Government to withdraw this set of policy proposals and to commission independent research into the use of cross-border placements, which includes a review of children’s views and experiences. We also ask that Sir James Munby’s 2016 suggestion for a joint investigation by the Law Commission of England and Wales and the Scottish Law Commission be given serious consideration. 

  2. As President of the Family Division of the High Court in England and Wales, Sir James Munby had heard the cases of two children (one looked after by Blackpool Borough Council, the other by Cumbria County Council) who had been placed in secure accommodation without legal authority in Scotland. He explained (in 2016):

“These particular issues arise because of the shortage of places in secure accommodation units in England, so that local authorities and courts in England, particularly in the north of England, whether on the Northern Circuit or the North-Eastern Circuit, look to making use of available places in secure accommodation units in Scotland. Precise data are not available, but such material (including anecdotal material) as exists suggests that there have been at least five such cases.” [9] [Our emphasis]. 

  1. Sir James Munby proposed a solution:

“… 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.”[10] [Our emphasis].

  1. By the time the children’s cases reached the Court of Session, both the UK and Scottish Governments had decided to amend the Children Act 1989. Lord Drummond in the Court of Session noted:

“If it were not for the statements made to us on behalf of the Lord Advocate about proposed legislation, we would have concurred with [Sir James Munby’s] 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.”[11]

  1. As set out in paragraphs 12 to 14 above, the purported permanent solution pursued in 2016/17 – to amend the Children Act 1989 – has clearly proven inadequate, which is why we urge independent research into children’s views and experiences and the possibility of the matter of cross-border arrangements for deprivation of children’s liberty being jointly considered by the Law Commission of England and Wales and the Scottish Law Commission, as suggested by Sir James Munby when he was President of the Family Division of the High Court in England and Wales.

28 January 2022

The policy position and consultation questions can be found here.

[1] R (Article 39) v Secretary of State for Education [2020] EWCA Civ 1577.

[2] A County Council v A Mother & Ors (Refusal to make a DOLS order) [2021] EWHC 3303 (Fam) [2].

[3] The duty is contained in Schedule 2, paragraph 19(3)(c) Children Act 1989.

[4] Regulation 15, The Children (Secure Accommodation) Regulations 1991 (as amended).

[5] https://publications.parliament.uk/pa/bills/cbill/2016-2017/0121/LCM-S05-7.pdf

[6] https://www.gov.uk/government/publications/childrens-social-care-market-study-interim-report/interim-report

[7] Lancashire CC v G (No 4)(Continuing Unavailability of Regulated Placement) 2021 EWHC 244 (Fam) [7].

[8] Lancashire CC v G (No 4)(Continuing Unavailability of Regulated Placement) 2021 EWHC 244 (Fam) [34].

[9] [2016] EWHC 2271 (Fam) [2].

[10] [2016] EWHC 2271 (Fam) [74].

[11] [2016] CSIH 92 [38].