PETITION FOR THE EXERCISE OF THE NOBILE OFFICIUM BY THE LONDON BOROUGH OF HACKNEY [2022] ScotCS CSIH_36 (18 August 2022)

PETITION FOR THE EXERCISE OF THE NOBILE OFFICIUM BY THE LONDON BOROUGH OF HACKNEY [2022] ScotCS CSIH_36 (18 August 2022)

The petition was dismissed because the English High Court DOL order had expired, leaving no extant order to be recognised or enforced in Scotland. There was no longer any lawful authority for deprivation of liberty, and the child was aware of his rights. The new statutory regime under the 2022 regulations now governs such cross-border placements, but did not apply retrospectively to this case.

Citation
[2022] ScotCS CSIH_36
Parties
Petitioner: The London Borough of Hackney; First Respondent: The Right Honourable Dorothy Bain QC, The Lord Advocate; Second Respondent: The Right Honourable Lord Stewart of Dirleton QC, The Advocate General for Scotland
Jurisdiction
Scotland
Judgment Date
18 August 2022
Procedural Posture
Petition for the Exercise of the Nobile Officium / Motion for Dismissal After Expiry of Relevant Order
Outcome
Petition dismissed
Legal Topics
Deprivation of Liberty Orders, Cross Border Placements, Recognition and Enforcement of Foreign Orders, Nobile Officium, Children's Rights
Family Law Child Law Public Law Deprivation of Liberty Orders Cross Border Placements Recognition and Enforcement of Foreign Orders Nobile Officium Children's Rights

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Parties

The London Borough of Hackney

Petitioner

The Right Honourable Dorothy Bain QC, The Lord Advocate

First Respondent

The Right Honourable Lord Stewart of Dirleton QC, The Advocate General for Scotland

Second Respondent

Procedural Posture

Petition for the Exercise of the Nobile Officium / Motion for Dismissal After Expiry of Relevant Order

Legal Issues

  1. 1 Whether the Scottish court can recognise and enforce an expired English High Court Deprivation of Liberty Order (DOL order)
  2. 2 Legal basis for continued restriction of liberty after expiry of DOL order
  3. 3 Transition to statutory regime under the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022

Ratio Decidendi

The petition was dismissed because the English High Court DOL order had expired, leaving no extant order to be recognised or enforced in Scotland. There was no longer any lawful authority for deprivation of liberty, and the child was aware of his rights. The new statutory regime under the 2022 regulations now governs such cross-border placements, but did not apply retrospectively to this case.

Court Disposition

Petition dismissed

Orders

  • Petition dismissed on petitioners' motion as there was no extant DOL order to recognise or enforce.