This appeal concerns the use of the inherent jurisdiction of the High Court to authorise a local authority to deprive a child of his or her liberty.
The background to the litigation is the shortage of provision for children who require special limitations on their liberty, for example by a placement in one of the small number of approved secure children’s homes in England and Wales, but for whom no space is available, or who would be better served by highly specialised care albeit still with their liberty limited. This shortage has forced local authorities to seek orders from the High Court under its inherent jurisdiction authorising alternative restrictive placements of children elsewhere than in an approved secure children’s home. A secure children’s home is typically accommodation designed for the purpose of restricting liberty, and while the regime may vary from home to home, would commonly include extensive CCTV, high fencing or walls with limited views, and reinforced and locked doors and windows.
These proceedings were begun by Caerphilly County Borough Council (CCBC) in July 2017 to address the care of T, who was then a 15-year-old in CCBC’s care by virtue of a care order. In view of her particular needs, CCBC 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. It 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 CCBC 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:
i. First, 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 argues that such a use of the inherent jurisdiction in this case is barred by the Children Act 1989 (the CA 1989) and contrary to article 5 of the European Convention on Human Rights (the ECHR).
ii. Secondly, if contrary to T’s argument the High Court can have recourse to its inherent jurisdiction to make an order of the type in question, what is the relevance of the child’s consent to the proposed living arrangements? T argues that consent is highly relevant, and that as she consented to the placements, it was contrary to her best interests to make the orders. These issues are no longer of relevance to T personally, whose circumstances have changed, but they continue to affect a significant number of children.
Whilst the Supreme Court dismissed the appeal, and held in particular that the use of the inherent jurisdiction to authorise the deprivation of liberty in cases like the present is permissible, it expressed grave concern about the use of the inherent jurisdiction use to fill a gap in the child care system caused by inadequate resources. The Supreme Court also highlighted the President of the Family Division’s guidance on the steps required if a child is placed in unregistered accommodation, and what the court must be satisfied of if approving such a placement. Lord Stephens notes that any order made under the inherent jurisdiction to authorise a deprivation of liberty where the placement is in an unregistered children’s home does not authorise the commission of a criminal offence or prevent an offence from being committed. He emphasises 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: -, and notes that such a placement may 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 are engaged: -. This is a temporary solution developed to deal with an extremely difficult situation caused by a scandalous lack of provision. The appropriate permanent solution is the provision of appropriate accommodation: .
Representation: Family and child care director Emine Mehmet instructing Mark Twomey QC, Alex Laing and Rachel Cooper, of Coram Chambers, and Dr Rob George of Harcourt Chambers.