Ellen Bond

In February 2023, following a review of the working of the Protocol and discussions with the Northern Ireland judiciary, it was agreed that the Protocol be extended to include Northern Ireland. The revised Protocol remains consistent with the original in terms of the need for requests and information to be communicated through the nominated liaison judge for each nation. The Handbook will be updated at a later date to include Northern Ireland family law.

The Protocol provides for the direct exchange of information between judges at all levels in intra-UK cross-border cases involving children. It allows for the prompt exchange of key information about any existing proceedings, and the legal options available to the court in each jurisdiction. This judicial Protocol formalises arrangements about how judiciary communicates and seeks to refine and streamline this process.

Under the Protocol, a judge dealing with a cross-border case will be able to make a request for information to the designated liaison judge in their own jurisdiction, who in turn can seek information from their opposite number. Judges should be able to establish what is happening in the alternative jurisdiction – for example whether proceedings have been raised, what orders have been granted, and what remedies are available.

Another feature of the Protocol was the creation of the Cross-Border Judicial Protocol Group. The group meet and discuss matters effecting intra UK family law.

Protocol in action

Despite the Protocol being in place for five years, there is very little by way of reported cases speaking about the Protocol being utilised. Morton Fraser was, however, involved in a series of cases acting for English local authorities which gave way to an opportunity for the Cross-Border Judicial Protocol Group to play a role influencing new legislation which had a cross border dimension.

Due to a shortage of residential provision for vulnerable children in England, the English courts were increasingly using their powers under their inherent jurisdiction to authorise the deprivation of liberty of children in residential children’s homes in other parts of the UK.

Prior to the enactment of The Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 there was no automatic recognition of an English order made under the inherent jurisdiction authorising the deprivation of a child’s liberty in Scotland. Unless the English local authority placing the child in Scotland took affirmative action to have that order recognised by the Scottish courts, any deprivation of the child’s liberty in Scotland would not have the appropriate legal authority. The English Local Authority required to petition the Court of Session under the nobile officium to have each DOL order treated as if it was an order made by the Scottish courts. The applications had to be made to the Inner House of the Court of Session, which is the Scottish civil appeal court, with a bench of either three or five judges.

Many English authorities were simply not aware of the need to obtain orders from the Scottish court, especially if they had a High Court order specifically referring to the placement in Scotland.

Due to the volume of these cases the Inner House was dealing with, several notes were issued by the court to clarify what steps had to be taken by English Local authorities placing children in Scotland. The note also sought to encourage the Scottish government to legislate in this area.

Prior to the enactment of the 2022 Regulations, in the conjoined Petitions of Lambeth and Medway Council [2021] CSIH 59, Lord Menzies commented on the unsatisfactory statutory lacuna and he set out guidance to Scottish and English practitioners as to the appropriate procedure pending legislative lacuna being filled. Lord Menzies clearly set out that the function of the Scottish court is not to “rubber-stamp” High Court decisions, and that what is appropriate by way of care provision and deprivation of liberty will differ from petition to petition as each child has their own particular needs and problems.

He also commented that if it became clear “a legislative solution remained some way off it may be necessary for the court to consider changes in procedure and/or issuing a Practice Note. There may be advantages in having a single designated judge who would be able to acquire expertise in this area and provide consistency of decision making. The appointment of a liaison judge (such as is designated in relation to Hague Convention cases) might promote greater dialogue between the judiciary in Scotland and England & Wales in this area.” Use of liaison judges under the Judicial Protocol was overlooked in this case which was perhaps a missed opportunity.

In the later Petition of Wolverhampton Council [2021] CSIH 69, the Children’s Commissioner for Scotland raised serious concerns relating to the lack of safeguards and parity of service provision for English children in Scotland. Practical concerns were raised about English Local Authorities being unfamiliar with the Scottish health care and education services available, the statutory framework and the risk of English children “slipping through the cracks” in Scotland. Lady Paton set out that the court required to be satisfied with regard to the rudiments concerning the child’s access to health care, schooling and family to enable the court to properly exercise its parens patriae jurisdiction and that English Local Authorities would need to provide the Court of Session with a detailed placement plan when a child was being placed in Scotland.

Lady Paton did refer to the Protocol in her note and concluded that the Cross-Border Judicial Protocol Group, would be best placed to assess the practical details involved in (i) alerting the Court of Session, Scottish local authorities, social work departments, health providers, education departments, the Care Inspectorate, and others about the placement in Scotland of a child from outside Scotland; (ii) defining mechanisms whereby a non-Scottish court may be reassured that the relevant Scottish court has in fact been alerted to the placement; (iii) specifying what reports should be ordered, and when; (iv) ensuring that information and/or court orders concerning the child are effectively communicated between the Scottish and non-Scottish courts; (v) other relevant matters.

Around six months after the Wolverhampton case, in May 2022 the Education, Children and Young People Committee considered the draft Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022. They heard evidence from various representatives from Children and Young People’s Commissioner for Scotland, law lecturers and Children’s Health Scotland.

The Regulations came into force on 24 June 2022. Guidance was also issued by the Scottish government alongside the Regulations for local authority staff in England / Wales involved in the placing of children into Scottish residential care under a DOL order. What input the Cross-Border Judicial Protocol Group had into the Regulations or guidance is not clear. There is no publicly available record of what is discussed at these meetings or the recommendations which come out of them.

Following the introduction of the 2022 Regulations, it was recognised by Lady Wise in the case of Petition raised by London Borough of Hackney [2022] CSIH 36 that “we appreciate that the new scheme may require further training and guidance for all concerned in this and the other UK jurisdictions we will provide a copy of this opinion to the International Family Justice Office for England and Wales (and its Northern 10 Irish equivalent) so that any concerns arising from the operation of the 2022 Regulations can be considered by the Cross-Border Judicial Protocol Group in due course.”

Conclusion

There was a long-established practice of senior family law judges in the Royal Courts of Justice and in the Court of Session in Scotland contacting one another in intra UK cases. The aim of the Protocol was to make information sharing more uniform. There is very limited reference to the Protocol in reported cases, so it may be that the Protocol is currently underutilised by both practitioners and by judges.

With respect to the Cross-Border Judicial Protocol Group there is no information readily available with regard to who is on the group, what has been discussed or recommendations they have made. If this information was published, it could help in raising the profile of the group and the Protocol itself. Practitioners dealing with intra UK cases should be considering and suggesting, where appropriate, that the Protocol is utilised. The Handbook is also an invaluable resource for any family law solicitor dealing with intra UK cases.

Ellen Bond is an associate at Morton Fraser. This article first appeared in Resolution Magazine.