Court of Session uses nobile officium to recognise English High Court orders due to ‘lacuna’ in legislation

Judges in the Inner House of the Court of Session applied the “extraordinary equitable jurisdiction” of the nobile officium after it emerged that there was “no provision” in law for the recognition in Scotland of such orders made by the English courts.

Lord Drummond Young, Lady Clark of Calton and Lord Malcolm heard that Cumbria County Council, Stockport Metropolitan Council and Blackpool Borough Council presented petitions to the nobile officium in respect of four children who were placed in secure accommodation by the High Court in England on the ground that it was “necessary for their well-being”.

But at the time of making the orders there was a shortage of suitable accommodation in England and in each case the child was placed in secure accommodation in Scotland.

However, this gave rise to a “jurisdictional problem”, as the extensive legislation on cross-border recognition of orders relating to the custody and care of children contains a “major deficiency” in that there is no provision for the recognition in Scotland of English orders requiring that a child reside in secure accommodation.

“Consequently,” Lord Drummond Young explained, “unless the Court of Session is prepared to intervene, the children are held in secure accommodation without legal authority.”

He continued: “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.

“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.”

The court was also told that the shortage of secure accommodation in England that gave rise to the petitions was “not an uncommon occurrence” and that there were several other cases likely to present the same problem in the immediate future.

The petitioners therefore sought orders under the nobile officium to find and declare that the measures ordered by the High Court in England should be recognised and enforceable in Scotland as if they had been made by the Court of Session.

They sought further orders finding and declaring that each child may be detained in Scotland in terms of the orders made by the High Court, and any order continuing those orders, at the particular institution in which each child was held.

In each case the order was sought until any further order was granted by the Court of Session, but subject to any variation of the orders made by the High Court in England.

The judges held that the present cases disclosed “a clear prima facie case” for application of the nobile officium.

Delivering the opinion of the court, Lord Drummond Young said: “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.”

The judges noted that 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 the Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013, but 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 judges held that a clear “casus omissionis” had been demonstrated in the legislation governing the recognition of orders placing children in secure accommodation.

The court also noted that the Civil Jurisdiction and Judgments Act 1982 provides for the enforcement of certain judgments made by courts within the UK in other parts of the UK, but under the Act any judgment which is “a provisional (including protective) measure”, such as the orders made by the High Court, is excluded.

The judges further held that the application of the nobile officium was also justified by the parens patriae jurisdiction.

Lord Drummond Young said: “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.”

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, and the court held that the balance of convenience “clearly” favoured the making of the order.

The judges concluded: “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 recognised and enforceable in Scotland as if they had been made by the Court of Session.”

The court was told that both the Scottish Ministers and the United Kingdom Government recognised the deficiencies of the existing legislation and that discussions had begun with a view to finding a permanent legislative solution for the problem, and the judges expressed their hope that the necessary legislation would be passed at the “earliest possible opportunity”.