Inherent jurisdiction can be used for deprivation of liberty of children amid “scandalous” shortage of approved secure accommodation: Supreme Court

The inherent jurisdiction of the High Court can be used to authorise the deprivation of liberty of children in alternative restrictive placements by a local authority in cases where an approved secure children’s home is unavailable, the Supreme Court has held.

However, the Court expressed grave concern about its use to fill a gap in the child care system caused by inadequate resources.

The proceedings in T (A Child), Re [2021] UKSC 35 were begun by Caerphilly County Borough Council in July 2017 to address the care of T, who was then a 15-year-old in the council’s care by virtue of a care order.

In view of her particular needs, the council intended to accommodate T in a placement in England which was not a registered children’s home or approved for use as secure accommodation, in circumstances which involved her being deprived of her liberty.

Caerphilly applied to the High Court for an order under the inherent jurisdiction authorising it to deprive T of her liberty there, and the order was granted.

After that placement broke down, the court authorised the council to deprive T of her liberty in a registered children’s home in England, which was not approved for use as secure accommodation.

There were two main issues before the Supreme Court:

1. Is it a permissible exercise of the High Court’s inherent jurisdiction to make an order authorising a local authority to deprive a child of his or her liberty in this category of case? T argued that such a use of the inherent jurisdiction in this case was barred by the Children Act 1989 (the "CA 1989") and contrary to article 5 of the European Convention on Human Rights (the "ECHR"). This argument was not advanced before the courts below.
2. If contrary to T’s argument the High Court could have recourse to its inherent jurisdiction to make an order of the type in question, what was the relevance of the child’s consent to the proposed living arrangements? T argued that consent was highly relevant, and that as she consented to the placements, it was contrary to her best interests to make the orders. These issues were no longer of relevance to T personally, whose circumstances had changed, but they continued to affect a significant number of children.

The Supreme Court unanimously dismissed the appeal. Lady Black gave the main judgment and Lord Stephens gave a short concurring judgment. Lady Arden gave a short judgment setting out her additional reasons for agreeing with the judgments of Lady Black and Lord Stephens.

In relation to issue 1, the Supreme Court noted that local authorities had statutory duties to protect and support children, including a specific duty to provide any child in care with accommodation. Section 25 of the CA 1989 in England, and section 119 of the Social Services and Well-Being (Wales) Act 2014 in Wales, were the basis of a regime for placing, in limited circumstances, a child who is being looked after by a local authority and who is at risk of harm in accommodation provided for the purpose of restricting liberty ("secure accommodation”).

Regulations provided that a children’s home must only be used as secure accommodation if it has been approved for that purpose by the Secretary of State for Education (in England) or by the Welsh Ministers (in Wales); and that children’s homes must be registered with Ofsted (in England) and Care Inspectorate Wales (in Wales). Any person who carried on or managed a children’s home without being registered commits an offence.

The shortage of such placements had prompted local authorities to seek orders from the High Court under its inherent jurisdiction, authorising them to deprive children of their liberty in other accommodation.

Lady Black said the inherent jurisdiction was a means of providing protection for children whose welfare required it. It had been described (by Lord Donaldson of Lymington MR) as the great common law safety net which lay behind all statute law.

However, Lady Black noted that it was subject to limits. Section 100 of the CA 1989 prohibited the use of the inherent jurisdiction to confer, in particular, power to determine any question in connection with any aspect of parental responsibility for a child on a local authority.

That, however, reflected the requirement of the CA 1989 that local authorities which need such a power must obtain a care order. It did not prevent recourse to the inherent jurisdiction in a case such as this, where the local authority already had parental responsibility by virtue of a care order.

Lady Black said that as to the contention that the use of the inherent jurisdiction cut across section 25 of the CA 1989, there were no findings as to the precise regulatory status of T’s placements.

She said thought that it was “unthinkable that the High Court, with its long-established role in protecting children, should have no means to keep these unfortunate children (and others who may be at risk from them) safe from extreme harm, in some cases death”.

If the local authority could not apply for an order under section 25 because there was no secure accommodation available, the inherent jurisdiction could be used to fill that gap. Where there was absolutely no alternative and where the child, or someone else, was likely to come to grave harm if the court did not act, the inherent jurisdiction might be used to authorise a local authority to deprive a child of his or her liberty, notwithstanding that the placement would be in an unregistered children’s home in relation to which a criminal offence would be being committed.

Nor did the use of the inherent jurisdiction in these circumstances fall foul of article 5 ECHR, given the safeguards which the courts had devised, in particular by mirroring the procedural protections applicable in a section 25 application.

Lord Stephens noted that any order made under the inherent jurisdiction to authorise a deprivation of liberty where the placement was in an unregistered children’s home did not authorise the commission of a criminal offence or prevent an offence from being committed.

He emphasised (at paragraphs 170-172) the matters which must be considered prior to a court authorising a placement in an unregistered children’s home and the ongoing monitoring which must take place thereafter.

He also noted that such a placement might also be justified, and required, where the positive operational duties to take steps to protect life or prevent inhuman or degrading treatment under articles 2 and 3 ECHR were engaged.

Lord Stephens said he agreed with Lady Black that recourse to the inherent jurisdiction in the face of this "scandalous" lack of provision should be a temporary measure.

“The appropriate permanent solution is the provision of appropriate accommodation. I add my name to the list of judges who have called attention to this issue which is a scandal containing all the ingredients for a tragedy.”

Lady Arden stated that she had difficulty with the limits of the inherent jurisdiction in this case. She went no further than to countenance its use in the exceptional circumstances described by the Secretary of State, for children 16 and above, which were likely to arise in an emergency following a placement breakdown where the consequences of the court being unable to authorise a deprivation of liberty were likely to be dire.

On the second issue – the relevance of the child’s consent to the proposed arrangements – T argued that it would have been conducive to her welfare if the court had placed more weight on her consent to the restrictive placements, rather than making an order.

However, Lady Black noted that an apparently balanced and free decision made by a child might be quickly revised. That was illustrated by the facts of this case, where T’s behaviour in the first placement confirmed the judge’s view that her consent was not genuinely expressed.

There was therefore no basis for holding that the judge was wrong to authorise restriction of liberty in T’s case, and her argument was entirely academic, the Supreme Court judge said.

Lady Black acknowledged, however, that any consent on the part of the child would form part of the circumstances that the court must evaluate in considering an application for an order authorising a local authority to restrict a child’s liberty.

This article was based largely on the Supreme Court’s press summary.