Judge issues ruling on use of inherent jurisdiction where placements will not or cannot comply with practice guidance issued by Family President

A High Court judge has handed down a ruling on whether it remains open to the court to exercise its inherent jurisdiction authorising a deprivation of liberty in cases where an unregistered placement either will not or cannot comply with practice guidance issued by the President of the Family Division.

Mr Justice MacDonald said this was in light of the central role accorded to the guidance – Practice Guidance: Placements in unregistered children’s homes in England or unregistered care home services in Wales (issued in November 2019 with an addendum in December 2020) – by the Supreme Court in Re T and by the High Court in Tameside MBC v AM & Ors (DOL Orders for Children Under 16).

The introduction to the Practice Guidance reads:

“[1] This Practice Guidance is being issued to explain the registration and regulation structure applicable in England and, separately, in Wales for residential care facilities for children and young people. The number of applications made for a court in family proceedings to authorise a residential placement of a young person in circumstances where their liberty may be restricted has increased markedly in recent times. Often the court is invited to exercise its inherent jurisdiction to approve a particular placement at an ‘urgent’ hearing. Where a residential unit is registered as a ‘children’s home’ in England, or a ‘care home service’ in Wales, the placement will be regulated and inspected by Ofsted (England) or the Care Inspectorate Wales. The primary focus of this Guidance is to ensure that, where a court authorises placement in an unregistered unit, steps are immediately taken by those operating the unit to apply for registration (if the unit requires registration) so that the placement will become regulated within the statutory scheme as soon as possible. The Guidance requires the court to monitor the progress of the application for registration and, if registration is not achieved, to review its continued approval of the child’s placement in an unregistered unit.”

The judge’s latest ruling comes after he handed down judgment on 8 September 2021 in which he decided that it remained 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 statutory scheme (as amended from 9 September 2021 by the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021), subject always to the rigorous application of the President’s Guidance.

Mr Justice MacDonald said his latest judgment in Derby CC v CK & Ors (Compliance with DOL Practice Guidance) (Rev1) [2021] EWHC 2931 (Fam) concerned a further question that had arisen in three cases, concerning the range of circumstances in which the jurisdiction he found subsisted might be applied.

“Namely, whether, given the central role accorded to the President’s Guidance by the Supreme Court in Re T and by this court in Tameside MBC v AM & Ors (DOL Orders for Children Under 16), it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the Practice Guidance.”

The High Court judge said the spectrum of the submissions made to the court on this question had been “bracketed at one end by the submission of each of the local authorities that the answer to this question is ‘yes’, and at the other by the submissions of the Secretary of State for Education and Ofsted that the answer to this question is ‘no’.”

The judge added that whilst each of the cases before the court concerned a child under the age of 16, the answer to the question posed in this case was applicable to all cases in which the Practice Guidance applied.

In his conclusion Mr Justice MacDonald said: “For all the reasons I have given, whilst accepting that an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, I am satisfied that that the court should not ordinarily countenance the exercise [of] the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply expeditiously for registration as mandated by law.” [judge’s emphasis]

He added: “Lest it be thought that this issue comprises an arid legal debate, it should be remembered at all times that these issues have a direct impact on vulnerable children and young people. 

“As in each of the cases that has come before this court, the issue at the heart of the legal questions that arise regularly for determination this context is an ongoing lack of resources.”

Within this context, on behalf of the Secretary of State, it was contended that this spoke of local authorities failing to fulfil their sufficiency duty under s. 22G of the Children Act 1989.

In turn, the local authorities before the court charged the Secretary of State with failing to provide them with the resources required to fulfil the sufficiency duty.

Mr Justice MacDonald said: “The court did not hear detailed submissions regarding where responsibility for the manifest lack of suitable provision for vulnerable children lies, and I accept the submission of [counsel for the Secretary of State] that it is no part of the function of this court to arbitrate the respective financial responsibilities of central and local government.

“Within this context however, I do note that in Boumar v Belgium (1989) 11 EHRR 1, the ECtHR held that where a State choses a system of educational supervision with a view to carrying out its policy on juvenile delinquency the State is under an obligation to put in place appropriate institutional facilities which meet the demands of security and the educational objectives of the policy in order to be able to satisfy the requirements of Art5(1)(d) of the Convention.”

Mr Justice MacDonald continued: “Wherever the responsibility lies for the current paucity of clinical provision for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive clinical environment, of secure placements and of registered placements, the net result is the litany of cases coming before the courts in which no suitable placement can be located for the child.”

The judge said that within the context of the cohort of cases before the court, the situation was demonstrated starkly by the position Plymouth City Council found itself in “when seeking to ascertain the suitability of a holiday park as a safe placement for a highly vulnerable child with a diagnosis of ASD, ADHD and Tourette’s Syndrome who displays violent and destructive behaviour with complex and acute emotional needs”.

Mr Justice MacDonald highlighted the summary of the position in the statement of the social worker:

“As was the case for the lodge at [location given], it will not be possible to access the specific lodge until check in. However the site will be contacted by telephone to complete a Property Risk Assessment on Monday 17th October 2021 once the specific lodge has been allocated to the booking. This will be updated if required when QV moves on Friday 22nd October 2021. The property is a holiday rental property for short term rentals, so the property does not have safeguards you would expect in a formal children’s home residential setting however [the holiday company] have confirmed that all properties have relevant holiday accommodation safety standards.” 

The judge said: “Thus, part of the risk assessment in respect of a placement for a highly vulnerable child with a diagnosis of ASD, ADHD and Tourette’s Syndrome who displays violent and destructive behaviour with complex and acute emotional needs is dependent on the check in provisions applicable to holiday makers. Thus, the current state of provision for children and adolescents requiring assessment and treatment for mental health issues within a restrictive clinical environment in this jurisdiction.”

Mr Justice MacDonald said each of the three cases with which the court had been concerned were to be listed before him individually last week for determination of those applications on the merits, having regard to the court’s foregoing conclusions regarding the preliminary question that had been before the court at this hearing.