Justin Gray provides an analysis of the current law on placement of looked after English children in Scotland that will be of interest to child care lawyers and solicitors, including those acting for local authorities.
There are a considerable number of high-quality residential accommodation resources in the southern counties of Scotland, and these are often used by English local authorities to house and treat looked after children who are otherwise difficult to place.
In Re C (A Child) (Care Order)  EWCA Civ 1714, the Court of Appeal concluded that the court could not approve the placement of a looked after young teenager at a residential home in Scotland without the teenager’s consent.
This approach gives a child a right of veto in relation to a placement that may be necessary for his or her needs, and which might be the only realistically available placement, even where the proposed placement is only a relatively short distance from his or her family. A child from Cumbria should not be able to determine that he or she must not be placed in the adjacent county of Dumfriesshire, and yet have little say in relation to a proposed placement in Kent or Cornwall. The distance from home and unfamiliar environment frequently means that the child concerned may not consent to the placement.
The analysis put forward by leading counsel in Re C, and accepted by the Court of Appeal, can cause considerable delay in the placement of the child, and may lead to other less appropriate options having to be explored. The Court of Appeal recognised the policy problem, and has referred the issue to the President of the Family Division.
There is another way of approaching such arrangements without the need for court approval and therefore without the requirement of the consent of the child, at least where the proposed placement is not intended to be a permanent living arrangement for the child. This has been successfully argued in three cases in England in 2019, two of them at High Court level, although none yet reported.
By going back to basics in Part IV of the Children Act 1989 and the Care Planning Etc Regulations 2010, it can be seen that the placement of a child subject to a care order at such a residential unit in Scotland does not require approval pursuant to Schedule 2 paragraph 19. The powers of a Local Authority pursuant to a care order, including an interim care order, already extend to it making a decision as to such a placement.
A necessary but temporary placement by a Local Authority can be in England, Wales, Scotland or Northern Ireland without recourse to the court or the need for Schedule 2 paragraph 19 approval.
Furthermore, the reciprocal arrangements between Scotland and England permit a child subject to a care order in favour of an English or Welsh local authority being placed on a temporary basis in Scotland without court authority.
This deployment of the powers conferred by Part IV of the Children Act 1989 is entirely consistent with practical circumstances often faced by local authorities, particularly in the North of England, where the best interests of the child may be for him or her to be placed at a therapeutic residential placement in Scotland.
The outcome of the referral to the President is awaited, but in the premises there is no ‘gap’ in the legislative framework as feared by the Court of Appeal in Re C. It might also be said that there are sound policy reasons for applying this approach.