Judges grant council permission to appeal in deprivation of liberty case involving 17 year old

In Re T (Inherent Jurisdiction Deprivation of Liberty) [2026], Lord Justice Baker made an interim order authorising the deprivation of liberty pending urgent determination of the appeal, finding it was “lawful and in the best interests of T that the local authority be permitted to deprive T of his liberty”.

The case concerned T, a young man aged 17 years who had been in the care of the local authority for seven years and was placed in a residential unit (L House) some 200 miles away from his home town.

A recent deterioration in his behaviour had led the local authority to apply to the Family Division of the High Court under the inherent jurisdiction for an order authorising the deprivation of his liberty.

One judge made a very short-term authorisation. But when the matter returned to court a few days later, another judge declined to extend the order.

As a result, the unit where T was living indicated that they were no longer able to accommodate him.

The local authority filed a notice of appeal and put forward the following grounds:

1. The judge erred in law by refusing the local authority leave to invoke the inherent jurisdiction of the High Court by relying on the use of s.25, Children Act 1989 as a statutory alternative to invoking the inherent jurisdiction thus preventing the Court granting leave to invoke the inherent jurisdiction pursuant to s.100(3), Children Act 1989. The judge failed to consider that at the time of the order being sought there was no available secure placement.
2. The judge erred in applying the facts by concluding that T had not suffered harm or was at risk of suffering harm as a result of his behaviours against others. Having wrongly found this fact, he misapplied it as a barrier to the court making an order pursuant to the inherent jurisdiction in T’s best interests.
3. The judge erred in facts by concluding that T was not at risk of suffering significant emotional harm due to placement instability that may arise from T’s dysregulating behaviours and the judge was wrong to conclude that there was not sufficient evidence before the court to reach that conclusion.
4. The judge was wrong to conclude that the placement staff had a statutory defence of self-defence by virtue of s.3 Criminal Law Act 1967.
5. The judge was wrong to find that the deprivation of liberty order sought was to be used as a mechanism to punish T’s alleged criminal offending and subsequently concluding that as T was not present and there were no findings made to the criminal standard of proof, that this prevented the court from authorising T’s restrictions at his placement.
6. The judge failed to undertake an appropriate welfare analysis as required by section 1 of the Children Act 1989 including the impact to T if he was to move placement from a placement where T wishes to remain.

Summarising the judgment under appeal, Lord Justice Baker said the reasons given by the judge for refusing to extend the order had been as follows:

“When someone poses a risk to others and very little risk to himself, I cannot speculate that this risk would cause harm to him or that he is at risk of suffering emotional harm. That would be pure speculation. I would need evidence from an appropriately qualified expert, which I do not have. I cannot see that it is in T’s best interests to authorise a deprivation of liberty.

“[…] I have no evidence that T would suffer significant harm if the order were not made. There is but one piece of evidence that he cut his hand: this was a one-off incident and is not indicative of T being likely to suffer significant harm. T does, however, pose a risk of significant harm to other people. In contrast, s.25(1)(b) provides for the availability of a secure accommodation order where, if T were kept in any other description of accommodation, other than secure accommodation, it is likely that he would injure himself or other persons. T is a risk to placement staff in particular, rather than others, but that may reflect that he is not out in the community.

“Moreover, even if I were able to make a Deprivation of Liberty Authorisation Order in these circumstances, which I do not consider that I can, I would need to be satisfied that the placement is suitable. Given the concerns expressed by the Police, I am not so satisfied.” (Original emphasis).

Discussing the case, Lord Justice Baker said: “I have considerable sympathy for the judge who was required to make a quick decision in difficult circumstances. I am clear, however, that his decision cannot stand. Although there is force in all of the local authority’s grounds of appeal, the principal errors made by the judge were as summarised by Mr Wilson [on behalf of T’s children’s guardian]:

(1) He wrongly decided that he was precluded from granting permission to the local authority to invoke the inherent jurisdiction on the basis that an alternative order was available under s.25 CA 1989.

(2) His analysis of whether there was reasonable cause to believe that T was likely to suffer significant harm if an order was not granted was flawed.”

Lord Justice Baker added: “Although there is a statutory regime under section 25 for a local authority to seek a court’s authorisation to keep a child in secure accommodation, it was not available in this case. The seemingly chronic shortage of secure accommodation places meant that the result which the local authority wished to achieve – the power to impose restrictions on T’s liberty to protect him from significant harm – could not be achieved through the making of an order under section 25.

“In addition, T wishes to stay at L House where he has been living for over a year. It would be plainly contrary to his welfare to move him immediately to another placement. The judge’s interpretation of section 100(4)(a) was therefore manifestly too narrow.”

The restrictions sought by the local authority [at paragraph 44] were:

1. There are a maximum of three members of staff on a 3:1 ratio at times when T is dysregulated both inside and outside the home;
2. At times when T becomes dysregulated in his behaviour, T may be subject to physical restraint, which shall only be used by appropriately trained staff, who are trained in the use of physical restraint and as an act of last resort after all other de-escalation tactics have been deployed.
3. When travelling by car T is supervised by a maximum of 3:1 staff members.

Lord Justice Baker said it was not disputed by the parties – and was accepted by the judge – that these restrictions amount to a deprivation of liberty under Storck v Germany and the “acid test” in Cheshire West.

He continued: “I agree with the local authority and the guardian that a declaration authorising a deprivation of liberty is in T’s best interests for the following reasons.

(1) The history of T’s residence at L House shows ongoing and escalating risks to himself and others and significant dysfunctional behaviour including threats, assaults on staff, and damage to property;

(2) The application was precipitated by a serious incident which led to his arrest;

(3) Although T was not physically injured during that incident, it is likely that he sustained emotional and psychological harm. Furthermore, there have been earlier incidents in which he did sustain physical harm, and the escalating nature of his behaviour gives rise to a likelihood that he will sustain significant harm, including physical harm, in future unless staff are able to restrain him when necessary;

(4) The staff and management at L House have indicated that they are unwilling to keep T unless authorised to use restraint if required;

(5) Despite the incidents described above, T has made progress at L House and wishes to stay there. It is plainly in his best interests to remain in a placement where he wishes to stay, in particular during the crucial period leading to his eighteenth birthday in July, which is only four months away;

(6) Although L House is unregistered, it is in the process of seeking registration from Ofsted;

(7) There is no alternative placement available. If T is required to leave L House, he will be homeless.”

Concluding the case, Lord Justice Baker found the appeal should be allowed on grounds 1, 2, 3 and 6, and that leave should be granted to the local authority to invoke the inherent jurisdiction, pursuant to section 100 of the Children Act 1989.

He also concluded that the Court of Appeal should declare that:

(1) it is lawful and in the best interests of T that the local authority be permitted to deprive T of his liberty by placing him at L House pursuant to Article 5 ECHR and accordingly such deprivation of liberty be authorised until 4:00pm on 17 April 2026;

(2) the deprivation of liberty sought by the local authority and permitted by the court may include the measures set out in paragraph 44;

(3) the provisions in place for T are necessary, the least restrictive and a proportionate response to the risk of harm which arise;

(4) in depriving T of his liberty, the local authority be directed to use the minimum degree of force or restraint required and only in circumstances that these are necessary, and

(5) the use of such force or restraint is lawful and in his best interests provided always that the measures are (a) the least restrictive of T’s rights and freedoms; (b) proportionate to the anticipated harm; (c) the least required to ensure T’s safety and that of others; and (d) respectful of T’s dignity.

Finally, Lord Justice Baker agreed that the Court of Appeal should order that the matter be listed before a full-time judge of the Family Division in April 2026.

Lord Justice Miles and Lord Justice Newey agreed.

Lottie Winson