The president of the Family Division has called for urgent action to fill gaps in the law relating to cross-border issues between England and Scotland.
Sir James Munby (pictured) said there are ‘serious lacunae’ in the law requiring urgent consideration, and he urged the two jurisdictions to come together to plug the holes.
Munby’s call came following a hearing to decide whether two teenagers from the north-west of England could be moved into secure accommodation in Scotland.
The issue arose because of a shortage of places in secure accommodation units in England, prompting local authorities near to the border to make use of places in Scotland.
Evidence suggests there have been at least five cases, including the two cases dealt with by Munby in a two-day hearing this summer. Munby said the issues needed to be viewed in the wider context of other cross-border issues arising between England and Scotland in family cases.
If there are, as he suggested, serious lacunae in the law, then a joint inquiry by the Law Commission of England and Wales and Scotland could seek to find a solution, Munby said.
‘That is one possibility. No doubt there are others. But it seems to me that something really needs to be done,’ he added.
In his judgment, Munby said it was clear there were no legislative provisions for the recognition and enforcement in Scotland of any of the orders made or proposed to be made by the two local authorities, Cumbria County Council and Blackpool Borough Council.
Advice from Scottish QCs stated that orders made by an English court, whether under the inherent jurisdiction or under section 25 of the Children Act 1989, are ‘not capable’ of being recognised under Scottish law.
Counsel added: ‘There is no mechanism in Scottish law for the recognition and enforcement of interim care orders.’
Munby suggested a procedure whereby an application can be made by interested parties to the Inner House of the Court of Session in Scotland, for what is termed the ‘petition to the nobile officium’. This is an extraordinary jurisdiction which can make orders where there is no existing legal remedy.
Munby said in the circumstances this was the ‘only way’ to take the matters forward, and once the outcome is known, to list the cases again before him.