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On appeal from: [2018] EWCA Civ 2136

The Supreme Court has unanimously dismissed this appeal concerning two main issues: (i) First, is it 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? (ii) 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 is the relevance of the child’s consent to the proposed living arrangements?

The appellant, T, was a 15-year-old child who was subject to a care order. The background to the litigation is the shortage of provision for children who require special limitations on their liberty. This shortage has forced local authorities to seek orders from the High Court under its inherent jurisdiction authorising alternative restrictive placements of children elsewhere than in an approved secure children’s home.

These proceedings were begun by Caerphilly County Borough Council in July 2017 to address the care of the appellant. In view of their particular needs, the council intended to accommodate T in a placement in England which was not a registered children’s home or approved for use as secure accommodation, in circumstances which involved her being deprived of her liberty. It applied to the High Court for an order under the inherent jurisdiction authorising it to deprive T of her liberty there, and the order was granted. After that placement broke down, the court authorised the council to deprive T of her liberty in a registered children’s home in England, which was not approved for use as secure accommodation.

The Supreme Court unanimously dismissed the appeal.

 

Issue 1: the use of the inherent jurisdiction to authorise a deprivation of liberty

Local authorities have statutory duties to protect and support children, including a specific duty to provide any child in care with accommodation. Section 25 of the CA 1989 in England, and section 119 of the Social Services and Well-Being (Wales) Act 2014 in Wales, are the basis of a regime for placing, in limited circumstances, a child who is being looked after by a local authority and who is at risk of harm in accommodation provided for the purpose of restricting liberty (“secure accommodation”). Regulations provide that a children’s home must only be used as secure accommodation if it has been approved for that purpose by the Secretary of State for Education (in England) or by the Welsh Ministers (in Wales); and that children’s homes must be registered with Ofsted (in England) and Care Inspectorate Wales (in Wales). Any person who carries on or manages a children’s home without being registered commits an offence.

 

The shortage of such placements has prompted local authorities to seek orders from the High Court under its inherent jurisdiction, authorising them to deprive children of their liberty in other accommodation. The inherent jurisdiction is a means of providing protection for children whose welfare requires it. It has been described as the great common law safety net which lies behind all statute law. But it is subject to limits. Section 100 of the CA 1989 prohibits the use of the inherent jurisdiction to confer, in particular, power to determine any question in connection with any aspect of parental responsibility for a child on a local authority. That, however, reflects the requirement of the CA 1989 that local authorities which need such a power must obtain a care order. It does not prevent recourse to the inherent jurisdiction in a case such as this, where the local authority already had parental responsibility by virtue of a care order.

 

As to the contention that the use of the inherent jurisdiction cuts across section 25 of the CA 1989, there are no findings as to the precise regulatory status of T’s placements. But it is in any event unthinkable that the High Court should have no means to keep children safe from extreme harm. If the local authority cannot apply for an order under section 25 because there is no secure accommodation available, the inherent jurisdiction can be used to fill that gap. Where there is absolutely no alternative and where the child, or someone else, is likely to come to grave harm if the court does not act, the inherent jurisdiction may be used to authorise a local authority to deprive a child of his or her liberty, notwithstanding that the placement will be in an unregistered children’s home in relation to which a criminal offence would be being committed. Nor does the use of the inherent jurisdiction in these circumstances fall foul of article 5 ECHR, given the safeguards which the courts have devised, in particular by mirroring the procedural protections applicable in a section 25 application.

 

Issue 2: the relevance of the child’s consent to the proposed arrangements

T argues that it would have been conducive to her welfare if the court had placed more weight on her consent to the restrictive placements, rather than making an order. But, Lady Black notes, an apparently balanced and free decision made by a child may be quickly revised. That is illustrated by the facts of this case, where T’s behaviour in the first placement confirmed the judge’s view that her consent was not genuinely expressed. There is therefore no basis for holding that the judge was wrong to authorise restriction of liberty in T’s case, and her argument is entirely academic. Lady Black acknowledges, however, that any consent on the part of the child will form part of the circumstances that the court must evaluate in considering an application for an order authorising a local authority to restrict a child’s liberty.

 

The Supreme Court holds in particular that the use of the inherent jurisdiction to authorise the deprivation of liberty in cases like the present is permissible, but expresses grave concern about its use to fill a gap in the child care system caused by inadequate resources.

 

For judgment, please see:

Judgment (PDF)

 

For press summary, please see:

Press summary (HTML version)

 

For non-PDF of the judgment, please see:

Judgment on BAILII (HTML version)

 

Watch hearing

28 October 2020 Morning session Afternoon session

29 October 2020 Morning session