MBC v AM  EWHC 2472 (Fam)
The WLR Daily case summaries
Tameside Metropolitan Borough Council v AM and another (Secretary of State for Education and another intervening)
Derby City Council v BA and others (Secretary of State for Education and another intervening)
Lambeth London Borough Council v DE and another (Secretary of State for Education and another intervening)
Manchester City Council v DM and others (Secretary of State for Education and another intervening)
2021 Sept 6; 8
Children— Inherent jurisdiction— Deprivation of liberty— Local authority seeking authorisation for deprivation of liberty in respect of child under 16— Local authority proposing to place child in unregulated accommodation— Proposed placement prohibited under amended statutory scheme— Whether court having inherent jurisdiction to authorise deprivation of liberty in such circumstances— Whether prohibited by terms of statutory scheme— Children Act 1989 (c 41), s 22C — Human Rights Act 1998 (c 42), s 6, Sch 1, Pt I, arts 2, 3 — Care Planning, Placement and Case Review (England) Regulations 2010 (SI 2010/959), regs 27, 27A, 27B, Sch 6
In four separate cases the local authority sought permission to apply for an order under the inherent jurisdiction of the High Court authorising the deprivation of liberty of a child under 16 where the proposed placement was in unregulated accommodation. 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 so as to prohibit the placement of a looked after child under the age of 16 in unregulated accommodation. In that context the preliminary issue was tried whether 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 authorised restrictions would be applied was prohibited by the terms of the amended statutory scheme.
On the preliminary issue—
Held, (1) in light of the protective purpose of the inherent jurisdiction in relation to children, and its function of supplementing the statutory scheme in order to fill gaps or to avoid injustice, the court ought not to hold that an inherent power had been abrogated or restricted by Parliament unless it was clear that Parliament so intended. The statutory scheme as amended by the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 was directed at regulating the powers of the local authority to place looked after children, as conferred by the Children Act 1989, and not the powers of the High Court under the inherent jurisdiction. There was a clear distinction between the exercise of the inherent jurisdiction by the High Court to authorise a deprivation of liberty, in cases where there was no alternative and where the child or someone else was likely to come to grave harm if the court did not act, and compliance with any legislative requirement by the local authority or the provider of a placement. The exercise of the inherent jurisdiction did not itself deprive a young person of his or her liberty but merely authorised the local authority or those acting on their behalf to do so should they consider that action necessary, and the question of whether to place the child in a placement that was unlawful by reference to the amended statutory scheme remained one for the local authority and not the court. Thus, the amended statutory scheme evidenced no legislative intent to remove the courts’ inherent jurisdiction to authorise the deprivation of liberty in respect of a child under the age of 16 in an unregulated placement and the making of such an order would not undermine the will of Parliament as expressed in the amended statutory scheme. It followed that the inherent jurisdiction to authorise the deprivation of the liberty of a child under the age of 16 was not abrogated by the fact that the amended statutory scheme made certain placements for such children unlawful (paras 50, 68, 70, 71, 73–75, 78).
Dicta of Lord Donaldson of Lymington MR In re F (Mental Patient: Sterilisation)B, 13 and In re T (A Child) (Association of Lawyers for Children and others intervening) B, SC(E) applied. (2) The fact that the local authority might employ a placement that was unlawful by reference to the amended statutory regime did not relieve the court from taking the positive operational step of authorising the deprivation of the child’s liberty in the placement proposed in order to discharge its duty under article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms where there was a real and immediate risk to the life of an identified individual or individuals, or article 3, where there was actual or constructive knowledge of treatment reaching the minimum level of severity. Further, in circumstances where section 6 of the Human Rights Act 1998 made it unlawful for a public authority to act in a way which was incompatible with a Convention right, where there was an immediate risk of breach of the Convention rights of an individual child the local authority could, if there was no other alternative, place the child in an unlawful placement to avoid such a breach. In circumstances where the statutory scheme did not oust the inherent jurisdiction it had to be open to the court to deploy that jurisdiction where the application of the statutory scheme in circumstances not covered by or anticipated by the 1989 Act would result in a failure to safeguard and promote the welfare of the subject child. Accordingly, within the context of the continuing inadequacy of resources highlighted by all tiers of court in the 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 was demonstrated to be in that child’s best interests, it remained open to the High Court to deploy its protective inherent jurisdiction to authorise that deprivation of liberty, notwithstanding the statutory scheme as amended (paras 76–78).
In re T (A Child) (Association of Lawyers for Children and others intervening)B, SC(E) applied. Lorraine Cavanagh QC and Shaun Spencer (instructed by Head of Legal Services, Tameside Metropolitan Borough Council, Ashton under Lyne, Solicitor, Derby City Council, Derby and Manchester City Council Legal Services, Manchester for the local authorities in the first, second and fourth cases.
Elizabeth Isaacs QC and Elizabeth O'Donnell, solicitor (instructed by Head of Legal Services, Lambeth London Borough Council) for the local authority in the second case.
The mother in the first case did not appear and was not represented.
John Buck (instructed by All Family Matters, Harrow) for the mother in the third case.
The mothers in the second and fourth cases in person.
Samantha Bowcock QC and Emma Barron-Eaves (instructed by McAlister Family Law, Manchester) for the child in the first case.
Brendan Roche QC and Kathleen Hayter (instructed by Kieran Clarke Green, Chesterfield) for the child in the second case, by the children’s guardian.
Tara Vindis (instructed by Charles Paulin & Co) for the child in the third case.
Annie Dixon (instructed by Lawrence & Co) for the children's guardian in the third case.
Callum Brook (instructed by Temperley Taylor LLP, Manchester) for the child in the fourth case, by the children’s guardian.
The father in the fourth case in person.
The fathers in the second and third cases did not appear and were not represented.
Jonathan Auburn QC (instructed by Treasury Solicitor) for the Secretary of State for Education, intervening.
Joanne Clement (instructed by Ofsted) for Ofsted, intervening.
Jeanette Burn , Barrister
Children Act 1989 (c 41), s 22C
Human Rights Act 1998 (c 42), s 6, Sch 1, Pt I, arts 2, 3
Care Planning, Placement and Case Review (England) Regulations 2010 (SI 2010/959), regs 27, 27A, 27B, Sch 6