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In this post, Mathew Purchase QC of Matrix Chambers discusses the Supreme Court’s decision in the matter of T (A Child) [2021] UKSC 35. The Court was asked to consider two things: first, whether it was a permissible exercise of the High Court’s inherent jurisdiction to make an order authorising a local authority to deprive a child of his or her liberty in this category of case, and secondly if, contrary to T’s argument the High Court can have recourse to its inherent jurisdiction to make an order of the type in question, what the relevance is of the child’s consent to the proposed living arrangements.

The Supreme Court unanimously dismissed the appeal against the decision in [2018] EWCA Civ 2136

 

Introduction

In this case, the Supreme Court was able to supply a legal justification for avoiding express limitations in a clear statutory scheme which, because of a shameful inadequacy of provision, was unfit to protect vulnerable children. It was able to interpret the language of the relevant statutory provisions so as to permit the High Court’s inherent jurisdiction to step in, and it had the support of the Government in so doing. However, despite the focussed analysis and particular facts, these judgments might prove relevant to any future challenge to attempts to curtail the Court’s inherent or common law powers.

 

Background

The High Court has long had an inherent jurisdiction, often but not necessarily invoked through ‘wardship’ proceedings, to provide protection for children whose welfare requires it.

However, by the Children Act 1989 above all, Parliament introduced a comprehensive statutory scheme which set out and limited the powers of the Court and of local authorities to protect (or, depending on your point of view, to interfere in the lives of) children. Similar legislation now exists separately in Wales, mainly in the form of the Social Services and Well-being (Wales) Act 2014.

That legislation confers on a local authority the power to accommodate a child in its care in ‘secure accommodation’ (that is, accommodation for the purpose of restricting liberty): see, in England, section 25 of the 1989 Act. However, it also sets clear limits on that power. One such limit is set by gateway criteria which prevent the use of secure accommodation unless it is necessary to prevent significant harm to the child or others. However, another limit is set by regulations, namely that accommodation in a children’s home may not be used as secure accommodation unless it has been approved by the Secretary of State for that use. The Supreme Court accepted that ‘secure accommodation’ in this context would generally be the sort of accommodation which would be regulated as a children’s home. Moreover, under the Care Standards Act 2000 in England and the Regulation and Inspection of Social Care (Wales) Act 2016, children’s homes must be registered in any event, and it is a criminal offence to carry on such a home if it is not registered.

There was no dispute in T’s case that she needed secure accommodation. The problem was that there was no suitable place available in any of the approved registered children’s homes. The only suitable place was in a registered children’s home which had not been approved for use by the Secretary of State. This sort of scenario is so regrettably common in the family justice system that Lord Stephens described it as ‘the enduring well-known scandal of the disgraceful and utterly shaming lack of proper provision for children who require approved secure accommodation’. The Secretary of State sought to suggest that the problem arose in ‘exceptional’ cases where existing provision broke down or could not meet the needs of the child, calling for ‘bespoke’ solo placements. Whether that is true or not, there is no doubt that this has become a systemic problem.

At any rate, this meant that T could not be accommodated consistently with section 25 of the 1989 Act or its equivalent in Wales. Thus, the local authority applied to the High Court for authority, in the exercise of its inherent jurisdiction, to accommodate her nonetheless.

T argued that any such power could not exist consistently with the statutory scheme. It was not just that section 25 of the 1989 Act was clearly intended to cover all of the circumstances in which looked-after children could be placed in secure accommodation. In addition, section 100(2)(d) of the 1989 Act specifically prohibited the use of the inherent jurisdiction ‘for the purpose of conferring on any local authority power to determine any question which has arisen… in connection with any aspect of parental responsibility for a child’.

The local authority and others argued that the inherent jurisdiction could still be used. The Secretary of State agreed, at least in the sort of ‘exceptional’ situation set out by him.

The Supreme Court, in a magisterial leading judgment given by Lady Black and in consenting judgments given by Lord Stephens and Lady Arden, accepted that the inherent jurisdiction continued to allow the High Court to sanction placements in unapproved accommodation.

 

Discussion

On one analysis, it looks like the statutory regime developed in and under section 25 of the 1989 Act, and its equivalent in Wales, was intended to be comprehensive. That regime sets clear limits on the power to place children in secure accommodation and, as a matter of principle, those limits are plainly sensible. What I have called the gateway criteria ensure that children are placed in such accommodation only when there is a real need for it. The further requirement for such accommodation to be registered and specifically approved by the Secretary of State (at least if it constitutes a children’s home) serves the obvious aim of ensuring that it is suitable and meets regulatory standards. It is not easy to envisage that Parliament intended that the residual powers of the High Court could be used, in effect, to circumvent these restrictions. Indeed, nobody suggested that the inherent jurisdiction could operate if the gateway criteria were not met.

There is plenty of authority to support the argument that the courts should not exercise their common law powers in a way which would cut across such a regime. To take one random example, see Johnson v Unisys [2013] 1 AC 518, in which the House of Lords held that it was not permissible to bring a common law claim for breach of contract which would sidestep the restrictions on the statutory unfair dismissal regime. The point might be said to be rammed home in the present context because, insofar as the statutory scheme prevents accommodation at a children’s home which is not registered, it is a criminal offence to run such a home.

However, a number of features placed In re T in a different category.

The first was what was at stake. If neither the Court nor the local authority had the power to accommodate children like T in secure accommodation, their own lives and wellbeing – and that of others – would be placed at unacceptable risk. As Lady Black said: ‘courts should be slow to hold that an inherent power has been abrogated or restricted by Parliament, and should only do so where it is clear that Parliament so intended. I would endorse that as being of particular importance where the inherent power exists for the protection of children’. One might add to that point that, although the regime governing the registration of children’s homes was statutory, the requirement for such a home to be authorised by the Secretary of State before providing secure accommodation was to be found in secondary legislation. However, the Supreme Court clearly held that, in appropriate cases, the High Court could authorise secure accommodation in children’s homes which were not even registered, contrary to primary legislation.

The second was that the legislative regime, though it ought to have been capable of meeting the needs of children, was not working in practice because of the failures of the Government. The deployment of the inherent jurisdiction was not, in that sense, a direct challenge to the legislative restrictions but a means of compensating for the State’s own failure to enable them to operate as Parliament must have intended they should.

The third was that Parliament had, in section 100 of the same 1989 Act, (i) expressly ousted the use of the inherent jurisdiction but only in specified circumstances and (ii) authorised the Court to allow a local authority to make an application under the inherent jurisdiction if certain conditions were met. It was possible – indeed, arguably, entirely orthodox – to interpret the ouster as not extending to this sort of case. The Supreme Court’s analysis of section 100(2)(d) is perhaps slightly elliptical, focussing more on the broad legislative intent. However, the basic thrust appears to be that, although the High Court’s authorisation to the local authority to place T in secure accommodation might have conferred on them a power which, by virtue of section 25, they would not otherwise have had, it was not conferring on them a power to determine the question: the determination of whether T could be placed in secure accommodation was made by the Court. Further, the reserved power to grant leave to apply clearly did extend to this sort of case: the result sought by the local authority could not have been achieved by any other order the local authority could have sought, and there was reasonable cause to believe that, if the Court did not exercise the inherent jurisdiction, the child was likely to suffer significant harm.

That being so, it is arguable that the Supreme Court could have reached the conclusion it reached simply on a perfectly orthodox and literal interpretation of the express language of section 100. If section 100 of the 1989 Act expressly allows the use of the inherent jurisdiction in this sort of case, it is a relatively easy step to the conclusion that a legislative regime set up under the same Act could not sensibly be taken impliedly to have prohibited the use of that inherent jurisdiction.

It may be that the Court considered this too fragile a basis on which alone to rest its decision: its interpretation of section 100 needed the added heft of a wider consideration of the context and the broad legislative intent. At any rate, the judgments are valuable for their wider and authoritative exploration not only of the legal framework for protecting children in the position of T but also of the reluctance of the Courts to accept that their inherent powers have been restricted or ousted by legislation other than in the clearest of cases where vital interests are at stake.