We were instructed by an English local authority in connection with the provision of care to two children, aged 8 and 6, who had significant and complex care needs. The children were being cared for by long-term foster a carers in Scotland, having been placed there in terms of orders of the English High Court. Those English court orders were not automatically recognised or enforceable in Scotland due to a gap in the law regulating cross border placements of children in local authority care.
Legal position
In July 2022, the Scottish Government passed legislation which provided for automatic recognition of certain English care orders (known as Deprivation of Liberty orders or "DOL" orders) in Scotland. These regulations effectively give DOL orders similar (although not equivalent) legal status to Compulsory Supervision Orders ("CSOs") made by Children's Hearings in Scotland under the Children's Hearings (Scotland) Act 2011. However, the regulations do not apply to other types of English care orders, such as those made in relation to the children in this case.
Petition to nobile officium of the Court of Session
We were instructed by the local authority to petition the nobile officium of the Court of Session to have the orders recognised and registered in Scotland in order to secure the children's places here.
Legislative change required
The children in this case were just two of many placed in Scotland by local authorities in other parts of the UK. It is widely recognised that the current legal provisions are inadequate and problematic, and it is not desirable for local authorities to have to apply on a case by case basis to have certain care orders recognised in Scotland. Given the need for further legislative reform and the wider issues in connection with cross border care placements giving rise to questions of compatibility with the European Convention on Human Rights (ECHR) and United Nations Convention on the Rights of the Child (UNCRC), our application to the nobile officium was also served on the Lord Advocate, the Advocate General for Scotland and the Children and Young Persons Commissioner for Scotland.