Child Law Update

January 14, 2022

Michael Jones reviews some of the most signifcant public law children cases of 2021.

It is once again that seasonal time of year where I endeavour to ‘wow’ my readers with a highly engaging and topical summary of interesting recent cases in the domain of children. I accept I probably (repeatedly) fail in this respect but will at least attempt to keep you all interested for the duration of reading this update; if you become bored and decide to do something else, may I recommend going to see ‘Dune’ on the iMAX (much better than the flawed David Lynch effort from the 80’s that featured Sting wearing a pair of rubber underpants).

Many of you may have noticed the number of recent judgments published in cases involving the deprivation of a child’s liberty, colloquially referred to as ‘DOLS’ cases (that phrase grates with me!). Curiously, we have now had several examples of the High Court refusing to authorise a child’s deprivation of liberty on the basis that the placement in question is so sub-standard that it actually compromises a child’s welfare; in Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 (Fam), MacDonald J refused to extend the authorisation for Y to be deprived of his liberty on a hospital ward, where the situation for Y can only be described as disgraceful. His lordship summarised Y’s situation as follows;

"Y currently remains contained on the ward in a sectioned off area. The doors to the paediatric ward have been securely shut and the area cleared of all movable objects. The door to the shower in which he washes himself has been removed, and therefore Y has no privacy at all when showering or dealing with other aspects of his hygiene. He is at present sleeping on a mat on the floor and he is unable to have a pillow, or a sheet due to the risk of self-harm and suicide. Y is still being prescribed daily intra-muscular Olanzapine, which is an anti-psychotic, the hospital taking the view that without this chemical sedation Y's behaviour would be simply unmanageable. Y does not socialise. In stark contrast to every other case of this nature that has recently come before this court (none of which involved placement on a hospital paediatric ward rather than in a residential setting), neither the evidence contained in the bundle nor the submissions made by the advocates identifies any positives with respect to Y current parlous situation, whether with respect to improvements in his behaviour, his relationships with staff or otherwise. His assaults on staff are frequent, violent and cause injuries to both Y and the staff."

MacDonald J differentiated this case from both Lancashire v G (Unavailability of Secure Accommodation) [2020] EWHC 2828 (Fam) and Tameside MBC v L (Unavailability of Regulated Therapeutic Placement) [2021] EWHC 1814 (Fam) where the living and care arrangements for the subject children were sub-optimal, as opposed to positively inappropriate to the level of those present in Y’s case. His lordship concluded that;

"Given the conditions in which Y is currently deprived of his liberty, which I am satisfied breach Art 5 of the ECHR, it is simply not possible to conclude that the restrictions that are the subject of the local authority's application are in his best interests, even where there is no alternative currently available for Y."

Following this decision, the Supreme Court confirmed in Re T (A Child) [2021] UKSC 35 that the High Court can legitimately invoke the inherent jurisdiction in order to authorise the deprivation of a child’s liberty in the absence of available registered secure accommodation, albeit it expressed grave concern about its use to fill a gap in the system attributable to inadequate resources.

In Tameside MBC v AM & Ors (DOL Orders for Children Under 16) [2021] EWHC 2472 (Fam), MacDonald J considered a number of test cases relating to whether the inherent jurisdiction could be used in order to authorise the deprivation of a child’s liberty at a placement in which the restrictions that will be applied is prohibited by the amendments to the Care Planning, Placement and Case Review (England) Regulations 2010. The effect of those amendments is to prohibit the placement of a looked after child under the age of 16 in unregulated accommodation; the question of law before MacDonald J was whether it remains open to the High Court to authorise, under its inherent jurisdiction, the deprivation of liberty of a child under the age of 16 where the placement in which the restrictions that are the subject of that authorisation will be applied is prohibited by the terms of the amended statutory scheme.

His lordship was satisfied that the inherent jurisdiction can be used in such circumstances, subject to a rigorous approach being adopted;

‘Within this context, in cases in which the question before the court is whether the court should authorise, under its inherent jurisdiction, the deprivation of liberty of a child under the age of 16 where the placement in which the restrictions that are the subject of that authorisation will be applied is prohibited by the terms of the Care Planning, Placement and Case Review (England) Regulations 2010 as amended, I am satisfied that the following principles will apply:

i) It remains open to the High Court to authorise under its inherent jurisdiction the deprivation of liberty of a child under the age of 16 where the placement in which the restrictions that are the subject of that authorisation will be applied is prohibited by the terms of the Care Planning, Placement and Case Review (England) Regulations 2010 as amended.

ii) In deciding whether to grant a declaration authorising the deprivation of liberty, the existence or absence of conditions of imperative necessity will fall to be considered in the context of the best interests analysis that the court is required to undertake when determining the application for a declaration on the particular facts of the case.

iii) Whilst each case will turn on its own facts, the absence of conditions of imperative necessity will make it difficult for the court to conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child under the age of 16 in an unregulated placement is in that child’s best interests in circumstances where the regulations render such a placement unlawful.

iv) It is not appropriate to define what may constitute imperative considerations of necessity. Again, each case must be decided on its own facts.

v) The court must ensure the rigorous application of the terms of the President’s Guidance, which will include the need to monitor the progress of the application for registration in accordance with the Guidance. Where registration is not achieved, the court must rigorously review its continued approval of the child’s placement in an unregistered home. Ofsted should be notified immediately of the placement. Ofsted is then able to take immediate steps under the regulatory regime.’

Under the amendments to the regulations, there is a 6 month ‘grace period’ in which local authorities are expected to relocate all children currently placed in unregulated placements to alternative placements (unless the placements they are currently residing in can obtain the relevant registration). The only exception to this, pursuant to the new Regulation 27B, is where a responsible authority placing an unaccompanied asylum seeking child whose age is uncertain and who claims to be 16 or 17; in these circumstances the authority may place that child in accommodation in accordance with ‘other arrangements’ under section 22C(6)(d). However if that child is then assessed as being under 16, then the authority has 10 working days to relocate him/her to a registered placement.

MacDonald J made the following points in relation to placement of a child within a placement prohibited by the regulatory scheme;

iii) Whilst each case will turn on its own facts, the absence of conditions of imperative necessity will make it difficult for the court to conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child under the age of 16 in an unregulated placement is in that child’s best interests in circumstances where the regulations render such a placement unlawful.

iv) It is not appropriate to define what may constitute imperative considerations of necessity. Again, each case must be decided on its own facts.

v) The court must ensure the rigorous application of the terms of the President’s Guidance, which will include the need to monitor the progress of the application for registration in accordance with the Guidance. Where registration is not achieved, the court must rigorously review its continued approval of the child’s placement in an unregistered home. Ofsted should be notified immediately of the placement. Ofsted is then able to take immediate steps under the regulatory regime.

Following on from the judgment in Tameside v AM, MacDonald J (notice the pattern here; his lordship likes hearing DOLS cases…) handed down a further judgment in Derby CC v CK & Ors (Compliance with DOL Practice Guidance) (Rev1) [2021] EWHC 2931 (Fam). In short, the question for the Court in this case was whether the inherent jurisdiction could be used to authorise the deprivation of a child’s liberty in a situation where the placement in question is unregistered and there is either a failure or unwillingness to comply with the President’s practice guidance in relation to unregistered placements (which essentially provides for an application for registration to be made to OFSTED within a set timeframe).

An “unregulated” placement refers to a placement that is not required to register with OFSTED under the relevant provisions of the Care Standards Act 2000 and the Care Standards Act 2000 (Registration) (England) Regulations 2010, which make provision for the registration and regulation of children’s homes, because it does not come within the definition of a children’s home and is hence not liable to regulation. There is a distinct difference between ‘registered’, ‘unregistered’ and ‘unregulated’ placements. The three distinct situations are properly described as follows:

i) a “registered” placement is a placement that (a) is within an establishment that is a children’s home for the purposes of s.1(2) of the Care Standards Act 2000 which (b) has been registered in accordance with the requirements of the 2000 Act;

ii) an “unregistered” placement is a placement that (a) is within an establishment that constitutes a children’s home for the purpose of s.1(2) of the Care Standards Act 2000 but which (b) has not been registered in accordance with the requirements of the 2000 Act;

iii) an “unregulated” placement is a placement in another establishment that
(a) is not a children’s home for the purposes of s.1(2) of the Care Standards Act 2000 and (b) therefore does not currently require to be registered under the terms of the 2000 Act.

His lordship concluded that as follows;

‘….whilst accepting that an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, I am satisfied that that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply expeditiously for registration as mandated by law.’

MacDonald J did however, note that there may be cases where the Courts could properly exercise the inherent jurisdiction in a situation where the placement cannot/will not comply with the guidance, albeit not for an indefinite period of time;

‘Where there is a continued failure to prosecute an application for registration despite a stated intent to do so it is difficult to see how court could continue, indefinitely, to use its inherent jurisdiction to authorise the deprivation of liberty in such a setting, as this would leave the subject child outside the protection of the statutory regime and would be contrary to the legislative intent underpinning the statutory regime. It is plainly unsatisfactory for a child to be in an unregistered placement very for months after it was known that he or she has been placed there. Such an approach increases the risk that a child will be moved into an unregistered placement and then moved again before the application to register is made, the completion of the registration process always lagging behind the child. This is not consistent with strict compliance with the Practice Guidance. Further, as Ms Clement points out, the granting of a declaration authorising the deprivation of the child’s liberty does not act to abrogate the continuing duty of the local authority under the 1989 Act to safeguard and promote the child’s welfare under section 22(3) of the 1989 Act, and to provide the child with accommodation which meets the child’s needs in accordance with section 22C of the 1989 Act. Where that accommodation is in a placement operated as a children’s home, it must be the subject of an application for registration. Whilst there is delay in applying for registration there is no independent review of placement or care of child or qualifications or training. Within the foregoing context, if a provider fails to apply for registration in a timely manner, and if a local authority fails to require that they do so, they must expect at some point that the court will refuse to continue authorising the deprivation of liberty of very vulnerable outside of the regulatory regime carefully designed by Parliament to protect and safeguard them.

I accept the general proposition that cases in which a child has been placed in an unregistered placement for a significant period of time by reason of delay in securing registration, and is making sustained progress in such a placement, will raise more difficult welfare questions in circumstances where moving the child by reason of an unacceptable delay in securing registration may conflict with the child’s wider welfare needs. However, such a situation is avoided by strict compliance with the Practice Guidance. The timely application for registration required by the Practice Guidance should avoid the situation arising where a child has settled in an unregistered placement such that to move him or her is not in his or her best interests and avoid the court being required to choose between ensuring the child is brought within the statutory regulatory regime and potentially prejudicing the child’s welfare in other respects.’

So in essence, the Court is unlikely to grant authorisation for the deprivation of liberty of a child in an unregistered placement, where the placement cannot/will not apply for registration and if it does so, it will almost certainly be time limited.

The Court of Appeal heard an appeal in the CK case on 3rd December; the appeal was dismissed, with the Court determining that the statutory scheme does not allow for unregistered placements, but does not prohibit them, and that as per the decision in Re T, where conditions of ‘imperative necessity’ require, the common law steps in and allows the High Court to exercise its inherent jurisdiction. That exercise of the inherent jurisdiction is not in breach of Art 5 and nor does it cut across the statutory scheme. As it is not the High Court that is making the placement, the exercise of the inherent jurisdiction is not part of the statutory scheme at all.

I would make the observation that the problems repeatedly encountered in these cases are a woeful lack of suitable placements for our most vulnerable children; it is the government (yet again) failing the most vulnerable members of society, with our (already overworked) social workers, judges, and lawyers left to pick up the pieces.

In Bell & Anor v The Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, the Court of Appeal overturned the decision of the Administrative Court, when it concluded that it was ‘highly unlikely’ that a child aged 13 or under would be able to give informed consent and that it was ‘very doubtful’ that a child of 14 or 15 would fully understand the implications of proceeding with treatment involving puberty blockers and cross-sex hormones. The suggestion was made that medical professional treating children under may need to apply to the High Court for permission before prescribing puberty blockers. The Tavistock Trust, the UK's only youth gender identity clinic, sought to appeal.

The Court of Appeal held that it had not been appropriate for the High Court to give guidance in relation to the issue of puberty blockers/cross-sex hormones as it effectively created a position whereby applications to the High Court for permission to pursue such treatment in circumstances where the Administrative Court itself had acknowledged that there was no legal obligation for medical professionals to seek such permission. In basic terms, the effect of this judgment is that the responsibility to determine whether a child has capacity to consent to medical treatment relating to the application of administration of blockers/cross-sex hormones, rests firmly with the medical professionals; the Courts are removed from the decision-making process unless there is a particularly complex dispute/set of facts.

Somerset County Council v NHS Somerset CCG & Anor [2021] EWHC 3004 (Fam) is a judgment from Mrs Justice Roberts that relates to applications for declarations pursuant to Part 18 of the FPR 2010 in relation to a cohort of 10 children. Each child had been made subject to placement orders and some had been matched with prospective adopters. It was subsequently discovered that the placement orders had been made on a flawed basis due to a failure of the local authority as an adoption agency, to comply with its statutory duties under the Adoption Agency Regulations 2005, namely via a failure to obtain a written health report or advice that no such examination and report was necessary, pursuant to Regulation 15, and failing to prepare a CPR including a summary written by the medical adviser of the state of each child’s health, his/her health history and any need for health care which might arise in the future, pursuant to Regulation 17.

Her ladyship considered each individual case on its merits but in summary, the Court was satisfied that the decision to place a child for adoption made by the ADM was not undermined by procedural irregularities which the breaches of Regulations 15 and 17 represent in circumstances where the Court is satisfied that even in the absence of a breach of Regulation 15(2), it would have been unlikely that the ADM would have requested a further medical report pursuant to regulation 15(3) and that it was unlikely that the agency medical adviser would have expressed an opinion in any regulation 17(1)(b) health summary which would have undermined the ADM decision to place the child for adoption. I read this judgment as a timely reminder to practitioners to carefully scrutinse the CPR in every case where a placement order is being sought; failure to follow the regulatory requirements can in principle undermine the lawfulness of any placement order made.

Finally, my seasonal Peter Jackson LJ judgment (only one of them this time - his lordship’s output has clearly not been as frequent as previous months). In H-W (Children: Proportionality) [2021] EWCA Civ 1451 Peter Jackson LJ allowed an appeal against a judge’s welfare determination in relation to three children who were removed from their mother’s care and into foster care and made subject to care orders, whilst their half sibling remained living with the mother under an interim care order. The facts are actually quite complex and the judgment lengthy, however his lordship reached the following conclusions;

‘In summary, making every allowance for the fact that this was an extempore judgment, I am driven to accept the submission that it does not contain an assessment of the welfare advantages and disadvantages of the rival plans for the children. The Judge stated a number of the relevant factors, so he clearly had them in his mind, but it is not possible to see how he balanced them out. Instead, there is a stated conclusion that the home is "unsafe" which faces the difficulties I have identified above, which prioritises the risk from A in particular above all other factors without any attempt to synthesise that factor with others.

The second factor in my assessment concerns F. The Judge did not explicitly rule out the parents by making what is sometimes referred to as a North Yorkshire finding (North Yorkshire County Council v B [2008] 1 FLR 1645). However, the parties agree that he has effectively done that and that, for the same reasons that relate to the older children, F will be adopted if she is not to be placed with B.’

In my opinion (admittedly as a mere family hack from the Northern Circuit), the judgment provides a comprehensive and articulate analysis of why the judge’s decision was wrong, albeit I am not sure I agree with the second factor identified, as although it may be extremely unusual, the test applied in relation to the removal of the elder children is one of welfare, whilst interim removal of the younger child required a much higher standard to be met by the local authority. The judgment is interesting because the two civil judges presiding over the hearing with Peter Jackson LJ disagreed and decided that the appeal should be dismissed on the basis the decision could not be said to be ‘wrong’ as defined by the relevant authorities. The appeal was therefore dismissed.

I think this is an interesting example of the different approaches taken within the family and civil jurisdictions; yes the test of whether a judge at first instance was wrong is the same in both, however the consideration of whether a welfare analysis relating to a child is wrong, is far from ‘binary’ and requires a level of understanding and analysis; I am not saying the civil lord/lady justices do not appreciate this or that they ‘don’t get it’, but that there is a difference in approach between the jurisdictions. I would invite all of my readers to read the judgment and let me know; do you think Peter Jackson LJ was right or wrong? You can PM or inbox me - best answer wins a box of celebrations (better than Quality Street, but I am still devastated Nestle removed Topics). HINT- anyone who corresponds with me arguing Peter Jackson LJ was wrong is unlikely to be awarded the overpriced confectionary prize.

Michael Jones is a barrister at Deans Court Chambers.