What should local authorities do in the case of looked after children under 16 who are placed in unregulated settings after 9 September 2021? Samantha Broadfoot QC investigates.
From 9 September 2021, the types of accommodation that can lawfully be used by local authority Social Services departments when placing a looked after child is limited by law to regulated placements under new Regulations. This will mean that it will be unlawful for local authorities to place a child under the age of 16 in an accommodation which is not regulated by Ofsted and will leave many local authorities without lawful placements for some looked after children. In MBC v AM & Ors (DOL Orders for Children Under 16)  EWHC 2472 (Fam) came to the conclusion that the High Court could declare that a deprivation of liberty in an unregulated placement was capable of being lawful if there was no alternative.
However, and whilst the conclusion is clearly driven by pragmatic need to find a solution for a group of the most vulnerable children in society, there are nonetheless questions as to whether the reasoning in this case is correct and the issue is likely to be considered in the Court of Appeal in the near future.
The background legal framework
The background to this problem is a little complex.
Local authorities have duties under s20(1) of the Children Act 1989 (“CA”) to provide accommodation to defined categories of children in need in their area as well as in limited other circumstances. Children provided with accommodation by a local authority, including those in care, are defined as “looked after children”: see s22(1) CA. S22C CA defines the ways in which a local authority can accommodate and maintain looked after children.
If a local authority does not place a looked after child with its parents, persons with parental responsibility or a person named in a child arrangements order, s22C(5) provides that “they must place [the child] in the placement which is, in their opinion, the most appropriate placement available”. The term “placement” is defined in s22C(6) to include a placement with an individual who is a relative, friend or other person connected with the child and who is also a local authority foster parent, a placement with a local authority foster parent and a placement in a children’s home registered under Part 2 of the Care Standards Act 2000. S22C(d) then provides the power for a local authority to place a child by making “other arrangements”. However, the types of placements available to a local authority can be limited by Regulations. There are other provisions in s22C which govern the steps that a local authority has to follow when choosing a placement, but they are not relevant for present purposes.
The Secretary of State made Regulations in 2010 which, amongst other matters, govern the types of placements where a local authority can place a child in exercise of its powers under s22C(6), namely the Care Planning, Placement and Case Review (England) Regulations 2010 (“the 2010 Regulations”). Part 4 of those Regulations makes provision for different types of placements.
A vast majority of placements are made by local authorities to premises which are not owned by public bodies. They include foster parents who foster children in their own homes, children’s homes run by charities or for profit companies and a variety of other types of premises. Most placements are in locations which are registered with either Ofsted or the Care Quality Commission (“CQC”); hence, operate under a regime which is regulated by a government quality assurance body and are subject to regular inspections. It is unlawful to provide health or care services without being registered with CQC but it is not necessarily unlawful for an operator of a service providing accommodation for children to be registered with Ofsted. The 2010 Regulations, as originally passed, did not prohibit local authorities placing children in “unregulated settings”. Instead, Regulation 27 of the 2010 Regulations set out steps that a local authority had to follow when placing a looked after child in an unregulated setting, including a specific set of factors that had to be considered as set out in Schedule 6 to the Regulations.
The Policy Shift
In recent years there has been a welcome policy shift where children who have been drawn into criminality, particularly in “county lines” drug trafficking and young women at risk of CSE, have been increasingly recognised as victims as opposed to being treated as juvenile offenders who should be dealt with by the criminal justice system. This has resulted in an increased need for such children to be accommodated by local authorities in appropriate placements as opposed to being exposed to risk taking behaviour which may land them in front of the criminal courts or worse. Whilst this is undoubtedly a positive development, it has created a substantial demand for additional accommodation for these children, often in secure settings. The lack of placements in regulated settings has led to an increase in local authorities placing looked after children in unregulated settings. That has been referred to as a “scandal” by the then President of the Family Division, Sir James Munby, who in re X (A Child) (No 3)  EWHC 2036 (Fam) referred to:
“the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with.”
In October 2020 MacDonald J returned to this theme in Lancashire County Council v G and N  EWHC 2828 (Fam) saying:
“It is plain that, despite the issue being highlighted in multiple court decisions since 2017, and by the Children’s Commissioner, the shortage of clinical provision for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive clinical environment, the shortage of secure placements and the shortage of regulated placements remains. In this context, children like G with highly complex needs and behaviour continue to fall through the gaps that exist between secure accommodation, regulated accommodation and detention under the mental health legislation.”
However, it is not right to blame local authorities for this problem because local authorities can only commission services from privately run care facilities that have space and are prepared to take on these troubled young people. There is a huge competition between local authorities for the small number of available places, prices are sky high but there are only a limited number of private operators who want to work in this high risk area of the market. Whilst it appears that everyone accepts that it is wholly undesirable to place vulnerable children in unregulated settings, the only solution to this problem is greater availability of regulated placements, and that can only be created by action by the private and voluntary sectors.
And yet, there is not a great deal of scope for optimism, at least not in the short term. Apart from the demand for places outstripping supply, there is evidence that existing registered children’s homes were becoming increasingly reluctant to accept children with highly complex needs due to concerns about the possible negative impact on their Ofsted rating if they are unable to secure positive outcomes in any particular case: see e.g. DfE Research Report ‘Use of unregulated and unregistered provision for children in care’, published in February 2020.
A government consultation in February 2021 appeared to consider that this was a regulatory problem. It said:
“In recent years, we have seen increases in the use of independent and semi-independent settings, and children in care and care leavers aged 16 and 17 now depend on these settings in similar volumes to children’s homes. This is, in part, due to having more older children in the care system now than we have ever had, and these types of settings are often the right choice for 16 and 17 year olds. They can offer a place to live with more independence, and when combined with the right level of high quality support to meet the needs of the older children placed there, they play a vital role in the care system”.
The new Regulations
The government responded to its consultation by making the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 (“the 2021 Regulations”). This response came prior to Re T in the Supreme Court earlier this year, more about which below. Regulation 4 of the 2021 Regulations adds a new Regulation 27A to the 2010 Regulations which now provides as follows:
“A responsible authority may only place a child under 16 in accommodation in accordance with other arrangements under section 22C(6)(d), where the accommodation is—
(a) in relation to placements in England, in—
(i) a care home;
(ii) a hospital as defined in section 275(1) of the National Health Service Act 2006;
(iii) a residential family centre as defined in section 4(2) of the Care Standards Act;
(iv) a school within the meaning of section 4 of the Education Act 1996(4) providing accommodation that is not registered as a children’s home(5);
(v) an establishment that provides care and accommodation for children as a holiday scheme for disabled children as defined in regulation 2(1) of the Residential Holiday Schemes for Disabled Children (England) Regulations 2013(6)”
There are also restrictions limiting placements for Scotland and Wales. A “care home” is defined in section 105(1) CA to have the same meaning as it has for the purposes of the Care Standards Act 2000 in respect of a care home in England. Children’s homes are similarly defined. The effect of the 2021 Regulations is that from 9 September 2021 a placement by a local authority in an unregulated setting is not lawful for any looked after child who is under 16 years of age. That almost certainly applies to existing placements as well as new placements. So, children under 16 who are presently in unregulated settings should be moved to a regulated setting. However, what is a local authority supposed to do if there is no placement available which falls within the list laid down in the legislation?
Re T  UKSC 35
The question as to whether it was lawful for a local authority to place a child in an unregulated placement where the child was deprived of his or her liberty was recently considered by the Supreme Court.
On 30 July 2021, the Supreme Court ruled in Re T (A Child)  UKSC 35 that the inherent jurisdiction could be used to declare that such placements, however undesirable, were lawful if they were the only practical option available to local authorities. The Supreme Court noted the new Regulations referred to below and Lady Black said, somewhat ominously at §33, “These changes will need to be taken into account once they are effective, later this year”.
A central issue was whether the use of the inherent jurisdiction to authorise the deprivation of liberty in cases like the present was compatible with article 5 in that it was not “in accordance with a procedure prescribed by law” as the article requires: see §89. In summary, the answer is that the inherent jurisdiction could be used to fill the void. As Lady Black said at §141: “If the local authority cannot apply for an order under section 25 because there is no section 25 compliant secure accommodation available, I would accept that the inherent jurisdiction can, and will have to be, used to fill that gap, without clashing impermissibly with the statutory scheme”.
However, it is arguable that there is now a “clash”, to use Lady Black’s words.
Deprivation of Liberty
A local authority accommodating a child under the age of 16 in an unregulated setting and in circumstances which deprive the child of his or her liberty (as will often be the case) face an immediate problem. As these types of accommodation will generally not be approved premises under s25 CA an application has to be made to the High Court to exercise its inherent jurisdiction to declare that the deprivation of liberty is lawful.
On its face, the decision in MBC v AM & Ors (DOL Orders for Children Under 16)  EWHC 2472 (Fam) is that local authorities can still make applications for DOLS orders despite the new Regulations. However, that case appears almost certain to be heading to the Court of Appeal and in short order.
Potential issues with MBC v AM & Ors
It is clear from the terms of the judgment, that the Court (and local authorities) are faced with an invidious situation. However, there is an argument that no deprivation of liberty can be lawful under Article 5 ECHR unless the procedure leading to the deprivation is “in accordance with a procedure prescribed by law”. Thus compliance with national law is an essential pre-requisite for compliance: see for example G.K. v. Poland and Talat Tepe v. Turkey. In the GK case, the Court found that there had been a violation of Article 5 where the authorities had failed to lodge an application for extension of a detention order within the time-limit prescribed by law.
The difficulty with a local authority making arrangements for a private provider to detain a child and deprive them of their liberty is that the arrangements are plainly not made in accordance with a process prescribed by law. On the contrary, they are unlawful since placements of children under 16 may “only” be to one which appears in the statutory list. The Judge gets round this by saying that the regulations bite on the local authority but not the court. But it is respectfully suggested that this does not work because everyone – including a child – has the right not to be deprived of their liberty by a state body (or by arrangements made by a state body – see Cheshire West) unless those arrangements are lawful under UK domestic law.
The Re T analogy relied on by the MacDonald J at para 70 does not really assist. The point made in Re T was that the deprivation of liberty was now lawful because there was no process to declare it to be lawful. The Supreme Court decided that the inherent jurisdiction could fill the void. But the inherent jurisdiction cannot override rules made by parliament – see A-G v De Keyser’s Royal Hotel Limited  AC 508. So, the inherent jurisdiction can fill a legal void but cannot be used to make something lawful which is unlawful. Indeed it could be said that there is no ‘legal void’ here at all.
S6(1) of the Human Rights Act 1998 provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right” and the court is a public authority for these purposes. Hence, the Court is required to act in accordance with a child’s convention rights.
The purpose of a Declaration that a child’s deprivation of liberty under the inherent jurisdiction is lawful is to declare that it is lawful for the local authority to make arrangements so that a child is deprived of their liberty when exercising functions under the Children Act 1989. The court does this in exercise of the parens patriae jurisdiction notwithstanding any statutory legal framework which justifies the deprivation of the person’s liberty. However, if the making of the arrangements leading to the deprivation of liberty are unlawful, the Court of Appeal may well conclude that these arrangements constitute a breach of article 5 ECHR. The Court might thus conclude that the court, as a public authority, cannot say that the arrangements put in place by the local authority are compliant with article 5 and thus acts in breach of its obligations under s6 HRA in declaring deprivation of liberty to be lawful.
Lurking under this issue is a more intriguing one which may merit further exploration. Section 1 of the Children Act 1989 provides that when a court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. The new Regulations can leave a local authority in a situation where it has to act against the best interests of a child by limiting its range of care settings to those that are regulated, and placements in those settings then need to be approved by the court. That potentially raises the question as to whether the Secretary of State had vires to make Regulations which, on the face of it and in the context of long standing and well-known lack of regulated provision, have the potential to breach the paramountcy principle.
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