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Inner House grants interim orders under nobile officium

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Inner House grants interim orders under nobile officium


16 December 2016

Inner House grants interim orders under the nobile officium

The Inner House has issued its opinion in the case of Cumbria County Council & Others, petitioners [2016] CSIH 92. The Court has granted interim orders under the nobile officium to protect the welfare of vulnerable children that were placed in secure accommodation in Scotland under orders of the English High Court.

The children had been placed in secure accommodation by the High Court in England on the ground that such accommodation is necessary for their well-being. At the time the High Court made the relevant orders, there was a shortage of secure accommodation in England. Suitable accommodation could only be sourced in Scotland. This gave rise to a jurisdictional problem. There is no legislation which provides for the cross border recognition of such orders. The result is that the orders of the High Court have no effect in Scotland. These difficulties were highlighted by the President of the Family Division in X (A child) [2016] EWHC 2271.

The petitioners sought to invoke the nobile officium to permit the orders of the High court to be recognised and enforceable in Scotland as if they had been made by the Court of Session. The Inner House was satisfied that it was competent to invoke the nobile officium in such circumstances and that interim orders should be granted to protect the welfare of the children.

The case contains a helpful analysis of the law relating to the nobile officium and, in particular, the circumstances in which the nobile officium can be invoked to cure gaps in legislation.

John MacGregor, of Axiom Advocates, acted as junior counsel for the petitioners.