Judge rejects use of court’s inherent jurisdiction to protect 17 year-old gang member

The High Court has refused a request by a local authority to place a minor into secure accommodation for his own protection under its inherent jurisdiction, ruling that it does not have the authority to do so due to a lack of care order for the child, the fact that he is not already accommodated by the authority and his mother’s objections.

In A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction) [2019] EWHC 1384 (Fam) (04 June 2019), the unnamed local authority applied for the court to deprive KS of his liberty under the court’s inherent jurisdiction. As KS was 17 years old, he was too old be made the subject of a care order and he could not be taken into secure accommodation under section 20 of the Children Act as his mother objected.

The case concerned a 17 year-old child with a history of gang involvement, including involvement in the discharging of a firearm, possession of knives and an axe, ‘county lines’ drug dealing activity as well as being the victim of a stabbing attack. He was arrested on a number of occasions, including most recently on suspicion of attempted murder following a shooting, for which he was bailed.

Following this incident, the police considered that he – and his family – were at risk of harm from rival gang members and suggested that they move to another city. His mother and both (younger) siblings did move but he refused, leading the secure panel to conclude that the risks to his life and to others, warranted an application for an order authorising his secure detention.

His social worker said: “KS remains at risk of significant harm or harming someone else if he is to remain in the care of [the mother] and remain in [the south of the city] and immediate surrounding areas. It is known from police information that KS is in possession of a firearm and there is information to suggest that he has used this on more than one occasion. The risks to KS's personal safety have been escalating since the beginning of the year and the police have indicated that there is a significant risk to his own safety and life due to potential reprisals as a consequence of the shooting incident..."

However, the judge, Mr Justice MacDonald, ruled that he did not have the power to order the child into secure accommodation because doing so would “have the effect of authorising his removal from his mother's care without her consent for this purpose in circumstances where his mother, who retains exclusive parental responsibility for him, objects to this course of action. In the circumstances, I am satisfied that the effect of the order sought by the local authority under the inherent jurisdiction would be to require KS to be removed from his mother's care and be accommodated by the local authority. This course of action is prohibited by s 100(2)(b) of the Children Act 1989”

He continued: “The intention and effect of Section 100(2)(b) is to prevent the court in wardship or under the residual inherent jurisdiction making any order which has the effect of requiring a child to be accommodated by a local authority. That end can only be achieved by satisfying the requirements of the statutory regime for accommodating children provided by (amongst other provisions) s 20 of the Children Act 1989. For the reasons I have given that outcome cannot be achieved in this case under the statutory regime. In such circumstances, it is clearly established that the High Court cannot exercise its inherent jurisdiction to grant authority to the local authority to accommodate a child where the local authority would not otherwise be able to do so under the statutory scheme (Re E (A Child) [2012] EWCA Civ 1773 at [16] and Re M (Jurisdiction: Wardship) [2016] EWCA Civ 937 at [39]).

“I am, of course, acutely conscious of the nature and extent of the risks to KS identified in the evidence before the court and of the duty of this court to act in a manner that is compatible with KS's rights under Art 2, which duty includes a positive obligation on the court to protect the right to life. However, the authorities that articulate this positive obligation make clear that it is to be discharged by the relevant public authority through taking "measures within the scope of its power" (see Osman v United Kingdom). For the reasons I have given, the orders sought by the local authority lie outside the scope of the court's power under the inherent jurisdiction.

“Within this context, it may also be considered by some to be surprising that the High Court cannot simply invoke its inherent jurisdiction in the manner requested by the local authority to address KS's situation. However, as Hayden J observed in London Borough of Redbridge v SA [2015] 3 WLR 1617 at [36]: "The High Court's inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults."

“Therefore, if the adolescent is over 17, not subject to a Care Order, and the parent objects to section 20, there isn’t a family law solution to the problem. It would have to be a criminal remand to a secure unit. That’s quite an unusual set of circumstances, because with an adolescent under 17, the LA could have sought an Interim Care Order and then secured.”