Re CK: Derby CC v BA  EWHC 2931 (Fam)
On BAILII as Derby CC v CK & Ors (Compliance with DOL Practice Guidance)
The WLR Daily case summaries
Derby City Council v BA and others (Secretary of State for Education and another intervening)
York City Council v TJ and others (Secretary of State for Education and another intervening)
Plymouth City Council v TV and others (Secretary of State for Education and another intervening)
2021 Oct 18, 19; Nov 3
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— Placement prohibited under amended statutory scheme— Whether open to High Court to authorise deprivation of liberty under inherent jurisdiction where proposed placement failing to comply with practice guidance— Children Act 1989 (c 41), s 22C — Human Rights Act 1998 (c 42), s 6, Sch 1, Pt I, arts 2, 3, 5 — Care Planning, Placement and Case Review (England) Regulations 2010 (SI 2010/959), regs 27, 27A, 27B, Sch 6
In three separate cases concerning the deprivation of liberty of a child under the age of 16 in a placement prohibited under the Care Planning, Placement and Case Review (England) Regulations 2010, the question arose whether, given the central role accorded by the Supreme Court and other courts to the Practice Guidance issued by Sir Andrew McFarlane P, dated 12 November 2019, entitled Placements in Unregistered Children’s Homes in England or Unregistered Care Home Services in Wales and the addendum thereto dated December 2020, it remained open to the court to exercise its inherent jurisdiction in cases where a placement either would not or could not comply with the Practice Guidance. Although each of the cases before the court concerned a child under the age of 16, the answer to the question posed would apply to all cases in which the Practice Guidance applied.
On the question—
Held, (1) Practice guidance issued by the President of the Family Division under the court’s inherent jurisdiction, in order to describe good practice, did not have the status of law or create a legal requirement, nor did it give rise to a cause of action if not followed. Within that context, the November 2019 Practice Guidance was plainly not capable by itself of ousting the inherent jurisdiction of the High Court to grant a declaration authorising the deprivation of a child’s liberty where there had been a failure to comply with it. However, compliance with the Practice Guidance was central to the safe deployment of that jurisdiction in a manner consistent with the imperatives of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (paras 42, 43, 45, 62, 63).
Dicta of Ryder LJ in In re P-S (Children) (Care Proceedings: Special Guardianship Orders) (Association of Lawyers for Children intervening)B, para 47, CA applied.
(2) Where the court was dealing with an application for an order authorising the deprivation of a child’s liberty in a placement that had not been registered, it would ordinarily, but not exclusively, be dealing with the question of an “unregistered” rather than an “unregulated” placement. While each case would turn on its own facts, the court ordinarily ought not to countenance the exercise of the inherent jurisdiction where an unregistered placement made clear that it would not or could not comply with the requirement of the Practice Guidance to apply expeditiously for registration as, if such a placement were permitted, the child would be placed wholly outside the relevant statutory regulatory regimes and deprived of the protection of the regulatory provisions deemed necessary by Parliament for the duration of that placement. That was so notwithstanding that the Practice Guidance contemplated that registration might be refused after an application was made or an application for registration might be withdrawn, and did not expressly prohibit the continuation of an unregistered placement in such circumstances. It was not a sufficient answer to say that the court was able to maintain oversight of the unregistered placement, since the High Court was not a regulatory body and nor was it equipped to perform the role of one (paras 34, 63, 71–74, 84, 94).
(3) An unwillingness or inability on the part of a placement to comply with the terms of the Practice Guidance was a factor that informed the overall best interests evaluation on an application under the inherent jurisdiction. A provider that would not apply for registration, in the sense of refusing to do so notwithstanding the terms of the Practice Guidance, was unlikely to be a viable option for meeting the subject child’s best interests. Such a refusal by a provider was, in reality, a statement of intent not to comply with the law put in place by Parliament to safeguard and promote the welfare of the subject child through the imposition of a comprehensive and wide-ranging regulatory regime and was most likely to result in a wholly unsuitable placement for obvious reasons. In those circumstances it was unlikely that the court would conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child with that provider was in the child’s best interests. The court might therefore be required to make a very short order (measured in hours or days and not weeks) as a holding position while alternative arrangements were put in place. That would particularly be the case where a placement was required immediately in order to meet the operational duties under articles 2 or 3 of the Human Rights Convention by keeping the child safe and the unregistered placement was the only means of achieving that. However, any authorisation given for a deprivation of liberty in that situation ought to be for the least time possible and the court ought to set a timetable for the identification of a placement that was registered or willing to apply for registration. A similar approach ought to be taken to providers that “could not” apply for registration, in the sense that they decided not to do so because, for example, they could never meet the requirements to apply successfully. Providers who were in the process of an application obviously fell into a different category but, where there was a continued failure to prosecute an application for registration despite a stated intent to do so, once again the court might find itself in a position where it could not extend the authorisation depriving the child of his or her liberty in circumstances where the placement continued to be outside the regulatory regime (paras 63, 82, 83, 87–91, 94).
In re T (A Child) (Association of Lawyers for Children intervening)B, SC(E) and dicta of MacDonald J in Tameside Metropolitan Borough Council v AM (Secretary of State for Education intervening) M at ,  considered.
(4) The timely application for registration required by the Practice Guidance ought to avoid the situation arising where a child had settled in an unregistered placement such that to move him or her was not in his or her best interests and avoid the court being required to choose between ensuring the child was brought within the statutory regulatory regime and potentially prejudicing the child’s welfare in other respects. The expectation was that the guidance would be strictly complied with to ensure that the child was brought expeditiously within the statutory regulatory regime. However, that did not exclude flexibility in an appropriate case. Where the provider and the local authority were working to a defined plan checked by Ofsted, engaging in a dialogue with Ofsted and being transparent about each step and any hurdles faced, where they were meeting the planned objectives and had provided the court with detailed plans and evidence of review, monitoring, support to ensure that the standards inside the placement were high, and where the local authority, providers and Ofsted were ad idem on the approach being taken, the court would not seek to frustrate that approach by the overzealous enforcement of time scales contained in non-statutory Practice Guidance (paras 92, 93).
Per curiam. In light of the acute resource issues that have been the subject of several recent Family Division judgments, cases may arise where an unregistered placement will not comply with the Practice Guidance with respect to an application for registration but no alternative placement is immediately available. In such cases, and accepting the difficulties created by resource issues, after hearing the matter the court is likely to indicate its intention to refuse the application for authorisation and invite the local authority to present alternative proposals (paras 87, 88).
Lorraine Cavanagh QC and Shaun Spencer (instructed by Solicitor, Derby City Council, Derby and Head of Legal Services, York City Council, York) for the local authorities in the first and second cases.
Martin Westgate QC and Chris Cuddihee (instructed by Head of Legal Services, Plymouth City Council, Plymouth) for the local authority in the third case.
Richard Drabble QC and Christopher Barnes (instructed by Bhatia Best, Nottingham) for the mother in the first case.
Julia Cheetham QC and Stephen Thornton (instructed by Newtons) for the mother in the second case.
Brendan Roche QC and Kathleen Hayter (instructed by Kieran Clarke Green, Chesterfield) for the child in the first case, by the children’s guardian.
Nageena Khalique QC and Eleanor Morrison (instructed by Freeman Johnson, Durham) for the child in the second case, by the children’s guardian.
Sarah Morgan QC and Patrick Paisley (instructed by The Family Law Co, Exeter) for the child in the third case, by the children’s guardian.
The mother in the third case did not appear and was not represented.
The father in each case did not appear and was 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, 5
Care Planning, Placement and Case Review (England) Regulations 2010 (SI 2010/959), regs 27, 27A, 27B, Sch 6