Re T (A Child)  UKSC 35
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In re T (A Child) (Association of Lawyers for Children and others intervening)
2020 Oct 28, 29; 2021 July 30
Lord Lloyd-Jones, Lady Arden, Lord Hamblen, Lord Stephens JJSC, Lady Black
Children— Inherent jurisdiction— Secure accommodation— Local authority wishing to place child in unapproved secure children’s home outside statutory scheme— Local authority applying for order under court’s inherent jurisdiction authorising placement depriving child of liberty— Whether jurisdiction to make order— Whether lack of valid consent on part of child necessary condition of jurisdiction arising— Children Act 1989 (c 41), s 25 — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5 — Social Services and Well-being (Wales) Act 2014 (anaw 4), s 119
The local authority wished to place a child whom it was looking after in secure accommodation, but since there were no places available in approved secure children’s homes it was unable to obtain an order under section 25 of the Children Act 1989 or section 119 of the Social Services and Well-being (Wales) Act 2014 authorising such a placement. Accordingly it applied for an order under the inherent jurisdiction of the High Court authorising the child’s placement in a secure setting where her liberty might be restricted. The child, who was competent, expressed her consent to the placement. The judge held that a court could not exercise the inherent jurisdiction to make an order equivalent to a secure accommodation order unless it was satisfied that the young person did not consent to the placement, reasoning that such an order involved a deprivation of liberty for the purposes of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms and that there was no deprivation of liberty for the purposes of article 5 in the absence of a lack of valid consent. However, he went on to find that the consent expressed by the child in the present case did not fall to be treated as valid consent as it was not “enduring” and that, in the circumstances, the order sought by the local authority should be granted. On the child’s appeal, the Court of Appeal held that the judge had erred in holding that it was necessary for the court to find a lack of valid consent before it could grant the local authority’s application but that, on the evidence, the judge had been right to grant the authorisation sought by the local authority.
On the child’s appeal, contending, further, that it was not a permissible exercise of the High Court’s inherent jurisdiction to make an order authorising the local authority to deprive her of her liberty—
Held, appeal dismissed. (1) The inherent jurisdiction of the High Court was a means by which to provide protection for children whose welfare required it. Although section 100 of the Children Act 1989 prohibited the use of the inherent jurisdiction to confer on the local authority any degree of parental responsibility which it did not already have, that did not prevent recourse to the inherent jurisdiction in a case where the local authority already had parental responsibility by virtue of a care order. It was unthinkable that the High Court should have no means to keep children safe from extreme harm. Where, therefore, there was absolutely no alternative and the child, or someone else, was likely to come to grave harm if the court did not act, the inherent jurisdiction could be used to authorise a local authority to deprive a child of their liberty, notwithstanding that the placement would be in an unregistered children’s home in relation to which the provider of the home would be committing a criminal offence. The use of the inherent jurisdiction in such circumstances did not fall foul of article 5 of the Human Rights Convention, given the safeguards which the courts had devised, in particular by mirroring the procedural protections applicable in a section 25 application. Such a placement might 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 of the Convention were engaged (paras 65–67, 107, 113–121, 141, 145, 150–155, 163, 164, 170, 174–178, 179, 189, 197–198).
(2) That since, at the time of the hearing of the appeal, the child was no longer a minor and no longer required any form of restrictive living arrangements, and events had vindicated the judge’s assessment that her apparent consent could not be relied upon to last, there was no basis for holding that the judge was wrong to order the restriction on her liberty and the issue of consent was academic. However, it was important, for the protection of a child, that the court was involved in authorising a deprivation of liberty, whether under section 25 of the Children Act 1989, section 119 of the Social Services and Well-being (Wales) Act 2014 or under the inherent jurisdiction. An apparently balanced and free decision made by a child might be quickly revised and/or reversed. Any consent on the part of the child would, however, form part of the circumstances that the court had to evaluate in considering an application for an order authorising a local authority to restrict a child’s liberty (paras 156–157, 161–163, 164).
Per curiam. 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. If a prosecution is brought against the provider of the home under section 11 of the Care Standards Act 2000, it is a matter for the criminal courts to determine whether an offence has been committed (paras 168, 183).
Decision of the Court of AppealM; B; B affirmed. Mark Twomey QC, Rob George, Alex Laing and Rachel Cooper (instructed by Duncan Lewis Solicitors) for the child.
Amanda Weston QC, Amanda Meusz, Lyndsey Sambrooks-Wright and Bethan Manners, solicitor (instructed by Head of Legal Services, Caerphilly County Borough Council, Hengoed) for the local authority.
Paul Hopkins QC and Matthew Rees (instructed by Cafcass Cymru) for Cafcass Cymru and (instructed by Welsh Government Legal Services Department, Merthyr Tydfil) for the Welsh Government, intervening.
Joanne Clement and Hannah Slarks (instructed by Government Legal Department) for the Secretary of State for Education, intervening.
Deirdre Fottrell QC, Lorraine Cavanagh QC, Siobhan F Kelly and Sharon Segal (instructed by Royds Withy King, Swindon) for the Association of Lawyers for Children, intervening.
Victoria Butler-Cole QC, Alexander Ruck Keene and Edward Bennett (instructed by Leigh Day) for the Children’s Commissioner for England, intervening.
Janys Scott QC and Paul Harvey (instructed by Balfour & Manson LLP, Edinburgh) for the Commissioner for Children and Young People in Scotland, intervening.
Jill Sutherland, Barrister
Children Act 1989 (c 41), s 25
Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5
Social Services and Well-being (Wales) Act 2014 (anaw 4), s 119