Judge hands down ruling on children under 16, deprivations of liberty and inherent jurisdiction after amendment of statutory scheme for placements

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 introduced by the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021, a High Court judge has ruled.

However, in MBC v AM & Ors (DOL Orders for Children Under 16) [2021] EWHC 2472 (Fam) Mr Justice MacDonald emphasised that this was “subject always to the rigorous application of the President’s Guidance of November 2019 entitled Placements in unregistered children’s homes in England or unregistered care home services in Wales and the addendum thereto dated December 2020”. [Comments in italics below are the judge's emphasis]

The 2021 Regulations amended the Care Planning, Placement and Case Review (England) Regulations 2010 and came into force on 9 September. The effect of those amendments was, in short, to prohibit the placement of a looked after child under the age of 16 in unregulated accommodation.  

At directions hearings held on 1 September 2021, Mr Justice MacDonald dealt with seven cases in which the issue of whether it was still open to the High Court to authorise deprivations of liberty of a child under the age of 16.

The judge listed four of those cases to be heard together on 6 September 2021 for legal submissions and invited the Secretary of State for Education, Ofsted and the Children’s Commissioner for England and Wales to intervene on the legal question. The Secretary of State for Education and Ofsted accepted the invitation to intervene.

In his conclusion Mr Justice MacDonald said it had “long been recognised that there are practical limits to what the law can achieve in circumstances where the tools at its disposal are relatively blunt and the problems the law seeks to address are usually complex.

“A law with a laudable aim may, for some of those who are the subject of it, end up exacerbating the problem it was intended to solve, whether because the problem is more complex than the law alone can cater for or because, for example, the introduction of the law is not accompanied by the resources required to give it proper effect. The inherent jurisdiction with respect to children is the safety net that, amongst other things, acts to ensure that laws promulgated by Parliament, however commendable their aims, do not inadvertently operate so as to do harm to children.”

The judge said that 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, he was satisfied that the following principles would apply:

1. 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.
2. 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.
3. 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.
4. It is not appropriate to define what may constitute imperative considerations of necessity. Again, each case must be decided on its own facts.
5. 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.

Each of the four cases with which the court was concerned was listed before Mr Justice MacDonald individually later in the week for determination of those applications on the merits, having regard to the court’s foregoing conclusions regarding the legal principles that apply. 

The judge said: “Whilst it may well be that most cases in which a child under the age of 16 is currently placed in an unregulated placement will be the result of there being no alternative, when cases in which there are subsisting orders authorising the deprivation of liberty of a child under the age of 16 in an unregulated placement come up for review or renewal on or after 9 September 2021, the principles that I have set out above will fall to be applied in those cases. To repeat, the President’s Guidance must be applied rigorously in all cases.”

Mr Justice MacDonald said that meanwhile the central problem of resources remained.

“On behalf of Lambeth, Ms Isaacs and Ms O’Donnell made submissions regarding the ability of local authorities to meet the sufficiency duty under s.22G of the 1989 Act. On behalf of the Secretary of State, Mr Auburn rightly cautioned the court that in circumstances where no direction has been made for evidence, it would not be appropriate for the court to make findings in respect of the nature and extent of, and the responsibility for, the acute shortage of placements highlighted by judges of the Family Division, the Court of Appeal and now the Supreme Court, by the Children’s Commissioner for England and Wales and by the research commissioned by the Department of Education itself.”

However, the judge said he “can observe that, in the experience of this court, the prohibition on placing children under the age of 16 in unregulated accommodation contained in the amended statutory regime is not coming into force on 9 September 2021 in the context of local authorities choosing to utilise such placements for vulnerable children in great need.

“Rather, it is coming into force in the context of local authorities having no choice but to employ such unregulated provision due to the well-recognised acute lack of appropriate provision. In BM’s case, on 1 September 2021 the Secure Welfare Coordination Unit (SCWU), which administers secure placements around the country, confirmed that there are no projected beds in the secure welfare estate and fifty live referrals. As at the date of the hearing, the number of referrals had risen to fifty four, again in the face of there being no projected beds.”

The judge said it remained unclear to him, “as a judge dealing with these cases on a weekly basis, what precisely is being done to ensure the necessary provision so urgently required in the large number of cases that continue to come before the courts and in which it has proved impossible to find a regulated placement for the subject child”.

He noted the observation of Lord Hope of Craighead in A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [2005] 2 AC 68 at [99], recognising the duty of the court to protect the rights of the individual as follows with respect to the obligations of government more widely:

“It is the first responsibility of government in a democratic society to protect and safeguard the lives of its citizens. That is where the public interest lies. It is essential to the preservation of democracy, and it is the duty of the court to do all it can to respect and uphold that principle.”

Mr Justice MacDonald said: “Within the context of the continuing inadequacy of resources highlighted by all tiers of court in this jurisdiction, by multiple agencies concerned with the welfare of children and by the Department of Education’s own research, where the deprivation of the liberty of a child aged under 16 in an unregulated placement is demonstrated to be in that child’s best interests, it remains open to the High Court to deploy its protective inherent jurisdiction to authorise that deprivation of liberty, notwithstanding the statutory scheme as amended.”

In the introduction to his ruling Mr Justice Macdonald said that from the written submissions of the parties and interveners, and during the course of the hearing, there had emerged a further question of law with respect to the precise ambit of the local authorities’ continuing power to place a looked after child in accommodation following the coming into force of the amended statutory scheme. “Specifically, whether the local authority retains the power to lawfully place a child in an unregistered children’s home.”

The four local authorities before the court contended that this question arose from what they submitted was the focus given by the Parliamentary materials associated with the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 to semi-independent and independent placements “and, hence, to unregulated as opposed to unregistered placements”. [judge’s emphasis]

The Secretary of State proffered that the placement of a child under the age of 16 in an unregistered children’s home will not fall within the express powers conferred either by s.22C(6)(c) (as the placement is unregistered) or s.22C(6)(d) (as the subject child is under the age of 16) of the Children Act 1989. The Secretary of State’s position was that all children who required care of the sort provided by a children’s home should be in a children’s home which was registered by Ofsted.

Mr Justice MacDonald noted that whilst each of the local authorities and Ofsted invited the court to determine this latter point, the Secretary of State cautioned the court against doing so in circumstances where it did not form part of the question of law raised by the court for determination at the hearing, where the parties had had a very limited time to prepare submissions for the hearing and where reaching a conclusion on the point was not necessary to determine the legal question before the court. 

The High Court judge said he accepted the force of the submissions of the Secretary of State in this regard. “To the extent that there may now be, in light of the amending regulations, an issue as to the ambit of a local authority’s power to place a child in an unregistered children’s home, that issue does not lead to a different analysis of the question concerning the ambit of the inherent jurisdiction that is before the court, the Supreme Court having confirmed that the power to place a child and the power to authorise a deprivation of liberty are separate and distinct.

“Further, the question of whether the local authority otherwise retains the power to lawfully place a child under the age of 16 in an unregistered children’s home requires a wider examination of the statutory scheme than simply an examination of the effect of the Care Planning, Placement and Case Review (England) Regulations 2010 as amended, which is the primary focus of this hearing.”

The judge added that the Secretary of State had conceded that where it was necessary to place a child in a particular place in order to prevent a breach of that child’s Art 2 or Art 3 rights, the local authority had a power, and that power might be a duty, to place the child there.

Mr Justice MacDonald said: “In the circumstances, whilst I make some observations below that may be relevant to the future question of whether the local authority retains the power to lawfully place a child under the age of 16 in an unregistered children’s home, it is not necessary or appropriate for me to offer a definitive answer to that question in this judgment.”