Current state of play in Deprivation of Liberty (DOLs) cases between Scotland and England and Wales
There is a shortage of suitable placements for vulnerable children in England and Wales who are subject to a deprivation of liberty order (DOL) granted in England or Wales. Often, these children do not require to be accommodated in secure accommodation but rather, need to be accommodated in an appropriate therapeutic setting. Where such a suitable placement exists in Scotland, arrangements are sometimes made for the child to be placed a residential establishment in Scotland.
JURISDICTION OF THE ENGLISH COURTS WHEN MAKING PLACEMENTS IN SCOTLAND:
The UK Supreme Court case determined this summer- In the matter of T (A Child) (Appellant) 2021 UKSC 35- made clear that the High Court in England and Wales can rely on its inherent jurisdiction to authorise the deprivation of liberty of children from England and Wales, by placing them in accommodation in Scotland. This fundamental matter having been determined; urgent consideration is now required to fill the legislative lacuna.
WHAT HAPPENS WHEN A CHILD FROM ENGLAND AND WALES IS PLACED IN SCOTLAND:
Where a child is subject to a deprivation of liberty order (DOL) granted in England or Wales, and the child is placed in accommodation in Scotland that is not secure accommodation as defined in legislation (Secure Accommodation (Scotland) Regulations 2013) it is necessary for the relevant English or Welsh local authority to seek recognition of these orders in Scotland. However, at present there is a statutory lacuna, as no legislation covers the recognition of such High Court orders, leaving it necessary to rely on the exercise of the Nobile Officium (a discretionary power held by the court, which is very strictly limited and rarely capable of being used).
The Extra Division of the Inner House of the Court of Session has recently issued a Note providing helpful guidance to practitioners in the Petitions for the exercise of the Nobile Officium by the Mayor and Burgesses of the London Borough of Lambeth and Medway Council  CSIH 59 P844/20, P349/21 and P598/21.
It is recognised that measures such as the deprivation of liberty of the child must be authorised by the High Court of England and Wales and that court has primary responsibility for the care and welfare of the child but, because the child is resident in Scotland, the court in Scotland is also involved. It is also recognised that the Nobile Officium is intended for exceptional circumstances rather than routine applications.
There are three preliminary points:-
Firstly, it is recognised that each child has their own particular needs and problems and that what is appropriate for each child, including any deprivation of liberty, will differ from case to case. It is made clear that the Court is “not laying down a fixed formula which must be followed in every process”.
Secondly, the function of the Court of Session is not to “rubberstamp” High Court decisions which are usually taken by a single judge. Whilst the High Court has primary responsibility for assessing the best interests of the child, procedures in Scotland require consideration by three Inner House judges. It is recognised that there is a heavy responsibility where the deprivation of liberty of a child is involved.
Thirdly, petitions must be presented within a very short period after the making of the High Court order.
Certain practical issues are also highlighted namely that petitioners should not seek recognition of High Court orders which have expired or been recalled and open-ended orders for the future, or without limit of time, will not normally be granted. The Court must be kept informed as to the present circumstances of the child.
Normally, the Court will not pronounce orders which are effective for more than three months even if the order of the High Court is effective for a longer period. In circumstances where the order of the High Court is effective for a longer period, applicants will require to make an application towards the end of the three month period for a further order seeking recognition. At that point, the Court will have to be satisfied that a further order is appropriate and will expect to be provided with brief information as to how the placement of the child is proceeding. It is not envisaged that this exercise will normally involve large files of materials but, the Court will need to have enough information to fulfil its responsibilities. In many cases it may be possible for the application to be considered on the papers without the necessity of a hearing. In the event that the Court considers a hearing is required, the case will be put out by order.
In my experience, in the event of a shorter deprivation of liberty order having been granted in England and Wales, recognition in Scotland will be granted for the extent of the High Court order, plus a period of 14 days to allow for the granting of any further order in the High Court in England and Wales. This should also allow time for the sealed order to be obtained so that it can be lodged, along with supporting information, and recognition sought in Scotland.
The Note concludes that, if it becomes clear that a legislative solution remains someway off it may be necessary for the Court to consider changes in procedure. One suggestion proffered is that of having a single designated judge who would be able to acquire expertise in this area and provide consistency of decision making. It is recognised however that any such change may require amendment to the Rules of Court and an Act of Sederunt.
Whilst their Lordships make clear that the Note is not intended to be treated as a set of “hard and fast rules applicable to all such cases”, what is produced by the Court is a helpful practical guide in a situation where the care of vulnerable children has to remain a priority pending the necessary legislative solution being achieved.
If you need advice on the recognition of DOLs orders in Scotland you can contact Susan Oswald who has acted in a significant number of the applications that have been heard by the courts in Scotland in recent years and who has a wealth of experience in relation to these matters.