View source for ICLR (2019) WLR(D) 316

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A City Council v LS and others (Secure Accommodation: Inherent Jurisdiction)

[2019] EWHC 1384 (Fam)

2019 May 23; June 4

MacDonald J
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''Children— Inherent jurisdiction— Secure accommodation order— Local authority applying under inherent jurisdiction for authorisation to place 17-year-old child in secure accommodation— Child neither looked after by local authority nor subject to care order— Whether power to exercise inherent jurisdiction in such circumstances— Children Act 1989 (c 41), ss 22(1), 25, 100(2)(b)''

The local authority applied under the inherent jurisdiction for an order authorising the placement in secure accommodation of a 17-year-old child deemed to be at risk of significant harm due to his alleged involvement with gang activity including drug dealing, knife crime and a recent shooting with the associated risk of reprisals. The local authority contended that, in circumstances where it was not open to the local authority to make an application under section 25 of the Children Act 1989 since he was not a looked-after child within the meaning of section 22(1), it was in the child’s best interests for an order authorising his placement in secure accommodation to be made under the inherent jurisdiction; that, provided the safeguards required by article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms were adhered to it, was open to the court to make orders to replicate the statutory protection available under section 25; and that, given the nature of the risks identified, the positive obligation created by the article 2 right to life required the court to make such orders. The child, supported by his mother, opposed the application on the basis that it was not open to the local authority to rely on the inherent jurisdiction as the vehicle for obtaining the court’s authorisation to place him in secure accommodation since the order sought would plainly contravene section 100(2)(b) of the 1989 Act and impermissibly cut across the legislative scheme governing secure accommodation.

On the application—

Held, application dismissed. Despite the fact that he was demonstrably at grave risk of serious and possibly fatal harm, the High Court had no power under the inherent jurisdiction to authorise the placement in secure accommodation of a 17-year-old child who was not looked after by a local authority within the meaning of section 22(1) of the 1989 Act and whose parent objected to that course of action. Section 100 of the Children Act 1989 imposed specific prohibitions on the court exercising the inherent jurisdiction so as to require a child to be placed in the care, or put under the supervision, of a local authority or to require a child to be accommodated by or on behalf of a local authority. Furthermore, Court of Appeal authority made clear that the prohibitions contained in section 100(2) of the 1989 Act applied in the context of both the “residual” inherent jurisdiction and in wardship. Where, inter alia, (i) there was no care order in force and no application for such an order could be made by virtue of the child’s age, (ii) he was not accommodated by the local authority for the purposes of section 25, and (iii) the child’s mother retained exclusive parental responsibility for him and did not consent to his accommodation, the effect of the order would be to require the child to be removed from his mother’s care and be accommodated by the local authority, a course of action prohibited by section 100(2)(b) of the 1989 Act. In such circumstances it was clearly established that the High Court could not exercise its inherent jurisdiction to authorise the local authority to accommodate a child where the local authority would not otherwise be able to do so under the statutory scheme (paras 1, 37, 38, 46–49, 55).

Dicta of Thorpe LJ in In re E (A Child) (Wardship Order: Child in Voluntary Accommodation) [2013] 2 FLR 63, para 16, CA, Hayden J in Redbridge London Borough Council v SA [2015] Fam 335, para 36, and MacFarlane LJ In re M (Jurisdiction: Wardship) [2017] 2 FLR 153, para 39, CA applied.

In re T (A Child) (Association of Lawyers for Children intervening) [2019] 2 WLR 1173, CA distinguished.

In re B (Secure Accommodation: Inherent Jurisdiction) [2013] EWHC 4654 (Fam) doubted.
Andrew Bagchi QC (instructed by Solicitor, A City Council) for the local authority.

Megan Gilchrist (instructed by Paul Crowley Solicitors) for the mother.

The father did not appear and was not represented.

Shaun Spencer (instructed by BDH Solicitors) for the child.

[Reported by:] Jeanette Burn, Barrister

Referenced Legislation

Children Act 1989 (c 41), ss 22(1), 25, 100(2)(b)