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Re X and Y [2016] EWHC 2271 (Fam)

Sep 29, 2018, 21:16 PM
The President held that the English court did not have jurisdiction to make a secure accommodation order for placement of a child in Scotland.
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Date : Sep 21, 2016, 07:48 AM
Article ID : 114546
(Family Division, Sir James Munby, the President of the Family Division, 12 September 2016)

Public law children – Secure accommodation – Jurisdiction – Placement of child in Scotland

The President held that the English court did not have jurisdiction to make a secure accommodation order for placement of a child in Scotland.


X and Y, who were 16 and 15 respectively, were subject to care proceedings. When their behaviour deteriorated applications were made to place them in secure accommodation. No places were available in England and, therefore, the applications were for placement in Scotland. It fell to be determined whether a judge sitting in England could make an order under s 25 of the Children Act 1989 for a child to be placed in a unit in Scotland. If not, whether the court could exercise the inherent parens patriae jurisdiction of the High Court. In either case, the question arose of whether such an order could be recognised and enforced in Scotland.

The President held that a judge in England could not make an order under s 25 for the child to be placed in Scotland. However, in principle, a judge could exercise the inherent jurisdiction and order the placement of a child in secure accommodation in Scotland providing the substantive and procedural requirements of Art 5 of the European Convention were complied with.

It was clear that none of the legislative provision provided for the recognition and enforcement in Scotland of an order made by a judge sitting in England under the inherent parents patriae jurisdiction.

In the circumstances of this case, the only option was for an application to be made by the relevant local authorities to the Scottish Court of Sessions seeking to invoke the nobile officium. Following a decision, the matter could be listed again to determine what should be done in light of the Scottish court's decision.

Neutral Citation Number: [2016] EWHC 2271 (Fam)
Case numbers omitted

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 12 September 2016

Before :


SIR JAMES MUNBY
PRESIDENT OF THE FAMILY DIVISION


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In the Matter of X (A Child)
In the Matter of Y (A Child)


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Ms Julia Cheetham QC and Mr Michael Jones (instructed by the local authorities) for Cumbria County Council and Blackpool Borough Council
Mr Simon Rowbotham (instructed by Denby & Co) for X’s guardian
Ms Susan Grocott QC and Ms Rebecca Gregg (instructed by Gaynham King & Mellor) for X
Ms Susan Grocott QC and Ms Alison Woodward (instructed by Cooper Nimmo) for Y’s guardian


Hearing dates: 28 July, 1 September 2016


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Re X and Y [2016] EWHC 2271 (Fam)

Judgment Approved
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  • Public Law Children
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