The Supreme Court is to hand down next week its ruling in a landmark case on the use of the inherent jurisdiction to authorise placements in unregistered secure accommodation in situations where there are insufficient places in registered secure children’s homes.
The Supreme Court’s ruling comes as two High Court judges this month expressed significant concerns once again about the shortage of secure accommodation for vulnerable children, with one of them (Mr Justice MacDonald) refusing to authorise the "brutal" deprivation of liberty of a 12-year-old boy on a paediatric ward despite the absence of an alternative placement.
The Supreme Court ruling is due on 30 July in the case of In the matter of T (A Child) (Appellant) – UKSC 2019/0188. The appellant, T, is a 15-year-old child who is subject to a care order. The local authority wished to place T in secure accommodation. Since there were no places available in registered secure children’s homes, the council applied to the High Court for orders under its inherent jurisdiction authorising T’s placement in non-statutory accommodation.
T had consented to the restrictions on her liberty in the placements sought and submitted that the orders restricting her liberty were, therefore, unnecessary. The High Court did not consider that consent to be valid, and duly made the orders sought by the local authority.
T sought to challenge those orders. She did not object to the placements or the restrictions on her liberty, but wished to be recognised as capable of consenting in law. In T (A Child)  EWCA Civ 2136 the Court of Appeal dismissed her appeal.
A Supreme Court panel comprising Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Hamblen and Lord Stephens heard the case on 28-9 October 2020.
The issues before the Supreme Court were:
- In circumstances where insufficient places are available in registered secure children’s homes, is the exercise of the inherent jurisdiction to authorise a child’s placement in unregistered secure accommodation lawful?
- If it is, what legal test should the courts apply when determining whether to exercise the inherent jurisdiction?
- Is a child’s consent to the confinement of any relevance when determining whether to exercise the inherent jurisdiction?
The two latest High Court rulings are meanwhile just the latest in a series of judgments expressing concern at the lack of appropriate accommodation for vulnerable children.
In the first case, Wigan BC v Y (Refusal to Authorise Deprivation of Liberty)  EWHC 1982, Mr Justice MacDonald declined to authorise the continued deprivation of liberty of a 12-year-old boy with complex medical and behavioural issues (Y) on the paediatric ward of a hospital, even though the local authority that made the application was unable to find an alternative placement for him.
The judge described the arrangements on the ward – where Y has had to be subject to chemical restraint, physical restraint and 5:1 staffing in order to attempt to control his behaviour – as “inappropriate, demeaning and….brutal one for a 12-year-old child”. The paediatric ward had had to be shut to new admissions due to the risk presented by Y and parts of the ward had been closed entirely.
Mr Justice MacDonald said that the arrangements that were in place to restrict his liberty in that setting were an entirely ad hoc arrangement that was not, “and indeed could never be”, designed to meet his needs.
The judge said that he could not “in good conscience” conclude that the restrictions in respect of which the local authority was seeking authorisation from the court were in Y's best interests, having regard to Y's welfare as his paramount consideration.
He added: “All the evidence in this case points to the current placement being manifestly harmful to Y. Within that context, the absence of an alternative cannot render what is the single option available in Y's best interests and hence lawful.”
Turning to what would now happen to Y, Mr Justice MacDonald said: “The answer is that local authority simply must find him an alternative placement.”
The second case, G, Re (Young Person: Threat to Life: Unavailability of Secure Placement)  EWHC 2066 (Fam) concerned a 15-year-old boy (G) whom Mr Justice Cobb said had had an extremely troubled and traumatic childhood. He has been out of the education system for two years and has a number of criminal convictions and cautions. He is recognised by the National Referral Mechanism as a victim of criminal exploitation, and reliable intelligence has revealed a serious and credible threat to his life.
The local authority for the area in which the boy lives considers that he needs to be in secure accommodation, or otherwise in a highly protected environment where he can be shielded from harm. The council has applied for an interim care order.
However, the local authority came to court submitting that it could not pursue applications for that order or a secure accommodation order because it could not identify a safe or secure placement for the boy. It had made enquiries of more than 250 establishments in England and in Scotland.
The council had also approached the hub known as the Secure Welfare Coordination Unit which administers secure placements around the country. It had had no success; there were 53 young people referred to that unit and only 1 bed showing as available on the system for a male young person.
Mr Justice Cobb said: “Currently therefore G remains in the community, at home, and obviously at considerable risk. At the hearing, I have directed the Local Authority to prepare a statement urgently setting out in detail its proposals to try to keep G safe while he is at home, given its duties to this child in need."
He adjourned the applications until 26 July 2021 to give the parties the opportunity to consider those measures.
The judge said he would give his judgment in open court “in order to raise awareness of the plight of G, and the many young people like him who require specialist secure placements, but who cannot be so placed given the scarcity of such resources”.
He said: “The intolerable consequence of the current situation is that the State – in its embodiment as the Court and/or as the Local Authority – is wholly unable to ensure the safety of G who is not yet 16 years of age, notwithstanding its positive obligation under Article 2 of the ECHR [right to life].”
The judge said: “G’s situation is grave, but it is I regret far from unique. There are characteristics of this case which are similar to those which have been highlighted in recent months through the publication of court judgments concerning other young people; I have in mind my own decision in Re S (Child in care: Unregulated placement)  EWHC 1012 (Fam), Re T (A Child)  EWCA Civ 2136, Re B (Secure Accommodation Order)  EWCA Civ 2025; the threat to G's life in this case makes it even more urgent and serious a case than other comparable cases such as Re Z (A Child- DOLS Lack of Secure Placement)  EWHC 1827 (Fam) and the series of decisions of Macdonald J including but not limited to Lancashire v G (Unavailability of Secure Accommodation)  EWHC 2828 (Fam), Tameside MBC v L (Unavailability of Regulated Therapeutic Placement)  EWHC 1814 (Fam).”
The attendance of the Secretary of State for Education had been requested for the hearing. In a letter sent before the hearing, the DfE said on his behalf:
“While there is no duty to provide secure accommodation in their area, there are general duties on Local Authorities to provide accommodation for looked-after children. In particular, section 22G of the Children Act 1989 imposes a duty on each Local Authority to take steps that ensure so far as reasonably practicable that they are able to provide accommodation in their area that meets the needs of children who are looked after by that Local Authority and fall within the section 22G(3) criteria. This is commonly known as the 'sufficiency duty'. In taking steps to secure that outcome the Local Authority must have regard to the benefit of having a number and range of accommodation providers that is, in their opinion, sufficient and capable of meeting different needs".
"While clear that Local Authorities must fulfil their sufficiency duty, the Secretary of State is sympathetic to the challenges presented in this case and recognises the difficulty in commissioning suitable accommodation for some children with complex and very high needs. The Department for Education is currently working to support Local Authorities in England in fulfilling their statutory duties, including expanding and refurbishing secure provision available in England through a £24 million capital programme for this financial year. The department is working with others across Government to also consider the needs and characteristics of young people across the estate and how provision can better meet their needs".
“These proposals will not yield a placement for G,” Mr Justice Cobb said.
He concluded his judgment saying: “The frustration of the judiciary is but nothing when compared to the precariousness of G's situation, and the real threats which are being made on his young life.”