High Court can still authorise deprivation of liberty of child in unregistered home in "imperative conditions of necessity": Court of Appeal

The statutory scheme established by Section 22C of the Children Act 1989 does not allow unregistered placements, but does not expressly prohibit them, and in cases where conditions of imperative necessity require a child to be placed in such a setting, common law steps in and allows the High Court to exercise its inherent jurisdiction to authorise a deprivation of liberty, the Court of Appeal has ruled.

In A Mother v Derby City Council & Anor [2021] EWCA Civ 1867 (07 December 2021), President of the Family Division Sir Andrew McFarlane – with whom Lord Justice Baker and Lady Justice Simler agreed – dismissed a mother's appeal, which contended that the government's recent amendment of the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2010, meant that placing a child under 16 in an unregistered children's home was now ultra vires with respect to a local authority's power.

The mother was appealing a High Court decision handed down by Mr Justice MacDonald, in which he authorised the deprivation of liberty (DOL) of four children, all under the age of 16.

The central question of the case, MacDonald J said, was whether the High Court had the authority to authorise the deprivation of liberty of the children.

He had concluded that 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 a placement that is prohibited by the terms of the Care, Planning, Placement and Case Review (England) Regulations 2010 as amended from 9 September 2021, without cutting across that amended statutory scheme".

MacDonald J later granted permission to the mother of one of the children to appeal the decision.

On 9 September 2021, the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 came into force, amending the Care Planning, Placement and Case Review (England) Regulations 2010.

The amended regulations make it unlawful for a local authority to place a looked after child in accommodation other than that which is expressly stated in Children Act 1989, s 22C(6)(a) to (c) ('CA 1989') or stated within the new r 27A.

The mother launched her appeal on grounds relating to the updated regulations. At the Court of Appeal, she advanced the following two grounds which claimed MacDonald J fell into error:

1. With the coming into force of amendments to the Care, Planning, Placement and Case Review (England) Regulations 2010 on 9 September 2021, a placement of a child under the age of 16 in an unregistered children's home was unlawful for the purposes of domestic law and it was therefore not open to the court to authorise the deprivation of liberty as being in accordance with ECHR, Art 5;
2. In circumstances where Parliament had legislated, by way of the amended regulation, to prohibit placement of a child under the age of 16 in an unregistered children's home, the court could not authorise a deprivation of liberty within that placement under the inherent jurisdiction without cutting, impermissibly, across the statutory scheme.

The President of the Family Division relied on the findings of the Supreme Court in Re T (A Child) [2021] UKSC 35; [2021] 3 WLR 643, which dealt with the lawfulness of the High Court's assumption of jurisdiction to authorise a deprivation of liberty in the case of children, generally.

The Supreme Court held that it was indeed lawful for the High Court jurisdiction to be deployed where the circumstances of a particular case established "imperative conditions of necessity" (a phrase used by Lady Black at paragraph 145 and endorsed by the other Supreme Court Justices).

The appellant argued that the legal context in Re T was distinct from that of the case in front of MacDonald J as the element of unlawfulness in Re T was one step removed and related to the potential criminality of a home owner who did not register. Where it is the local authority that would be acting unlawfully, the High Court cannot have jurisdiction to authorise such a placement, the appellant claimed.

However, Sir Andrew said he was persuaded that the appellant's case failed for two separate reasons. 

"First, I accept the submissions on behalf of OFSTED and the local authorities that placement in an unregistered children's home is, and has always been, wholly outside the statutory scheme, and not therefore within s 22C(6)(d) as asserted by the Appellant," the Court of Appeal judge stated.

He said: "As a result, the recent amendments, which relate to placements within sub-subsection (d), have no relevance to placement in an unregistered children's home. The fact that placements were from time to time being made in unregistered children's homes in these challenging cases was expressly before the Supreme Court, and was the subject of the President's Guidance. The authority of Re T squarely dealt with the issue and approved the use of the inherent jurisdiction in such cases where there were imperative circumstances of necessity."

The Family President said the second reason for rejecting the appellant's case was that, even if it were the case that placement in an unregistered children's home was prohibited by the statutory scheme (which he had concluded was not the case), that question was, again, directly considered and determined in Re T.

"All of the Justices agreed with Lady Black that, where it is necessary to do so to meet the overarching needs of the child (or to protect the safety of others), the inherent jurisdiction of the High Court must be available, notwithstanding that the underlying placement is prohibited by statute,” Sir Andrew said.

Concluding his judgment, the Family President said: "On the central point of law upon which this appeal turns my conclusion is that where a local authority places a child under CA 1989, Part III in an unregistered children's home, that placement is outside the statutory scheme established by CA 1989, s 22C and the regulations. The Supreme Court determined in Re T that the High Court nevertheless has jurisdiction, in an appropriate case, to authorise that restrictions may be placed on the liberty of a young person placed in such a placement where imperative conditions of necessity justify doing so."

He added: "We have found that the scheme does not allow unregistered placements, but does not expressly prohibit them. In those circumstances, as in Re T, where conditions of imperative necessity require, the common law steps in and allows the High Court to exercise its inherent jurisdiction. That exercise of the inherent jurisdiction is not in breach of Art 5 and nor does it cut across the statutory scheme. As it is not the High Court that is making the placement, the exercise of the inherent jurisdiction is not part of the statutory scheme at all. In this respect, the situation is exactly as it was in Re T where the Supreme Court did not feel the need to read any words into the statute. 

"In those circumstances there is no need to read words into the statutory scheme to enable it to be exercised," the judge said.

Adam Carey