Published: Friday 30th July 2021
On appeal from:  EWCA Civ 2136
Justices: Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Hamblen, Lord Stephens
On Friday, 30 July 2021 the Supreme Court delivered its judgment on the inherent jurisdiction to authorise a child’s placement in unregistered secure accommodation where insufficient places are available in registered secure children’s homes.
The main thrust of the appeal focused on the following issues: ‘
- In circumstances where there is no provision available in registered secure children’s homes, is the exercise of the inherent jurisdiction to authorise a child’s placement in unregistered secure accommodation lawful?
- What legal test should the courts apply when determining whether to exercise the inherent jurisdiction?
- Is a child’s consent to the confinement of any relevance when determining whether to exercise the inherent jurisdiction? .
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. Some would be likely to meet the criteria for placement in a secure children’s home, but would be better served by highly specialised therapeutic care of a different kind, albeit still with their liberty strictly limited.
Both the Children Act 1989 and the Social Services and Well-Being (Wales) Act 2014 (“the SSW(W)A 2014”) make express provision for the use of accommodation for restricting a child’s liberty, but over recent years, the High Court has found itself faced with a significant number of applications by local authorities seeking orders under the inherent jurisdiction authorising alternative restrictive placements of children for elsewhere than in an approved, registered, secure children’s home.
The appellant, T, in this matter was a 15-year-old child who was on a care order. The local authority wished to place T in secure accommodation. There were no places available in registered secure children’s homes, so the local authority applied to the High Court for orders under its inherent jurisdiction authorising T’s safety be secured in non-statutory accommodation. T had consented to the restrictions on her liberty in the arrangement sought and submitted that the orders restricting her liberty were, therefore, unnecessary.
The High Court did not consider that consent to be valid, and made the orders sought by the local authority. T challenged on the basis of wanting to be recognised as capable of consenting in law.
THE CONTEXT OF THIS APPEAL
Lord Stephens (with whom Lord Lloyd-Jones, Lord Hamblen and Lady Black agreed):
166. First is the enduring well-known scandal of the disgraceful and utterly shaming lack of proper provision for children who require approved secure accommodation. These unfortunate children, who have been traumatised in so many ways, are frequently a major risk to themselves and to others. Those risks are of the gravest kind, and include risks to life, risks of grievous injuries, or risks of very serious damage to property. This scandalous lack of provision leads to applications to the court under its inherent jurisdiction to authorise the deprivation of a child’s liberty in a children’s home which has not been registered, there being no other available or suitable accommodation. However, any person who carries on or manages a children’s home without being registered is guilty of an offence under section 11 of the Care Standards Act 2000 (see para 55 above). So, the issue arises as to whether the inherent jurisdiction of the High Court can be used to authorise a deprivation of liberty in circumstances in which a criminal offence may be committed by those carrying on or managing a children’s home.– Lord Stephens, Judgment on BAILII (HTML version)
Lord Stephens on the permissible exercise of the inherent jurisdiction in protecting children:
170. I agree with Lady Black, at para 141, that it is “unthinkable that the High Court, with its long-established role in protecting children, should have no means to keep these unfortunate children (and others who may be at risk from them) safe from extreme harm, in some cases death”. I also agree that where “there is absolutely no alternative, and where the child (or someone else) is likely to come to grave harm if the court does not act” that it is “a permissible exercise of the inherent jurisdiction to authorise a local authority to place a child in an unregistered children’s home in relation to which a criminal offence would be being committed” (para 145 above with emphasis added). In this context, as in the context of section 31 of the Children Act 1989 (see Lord Nicholls in In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563, 585), “likely” should be taken to mean a real possibility, that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case. Accordingly, the courts, in the exercise of the inherent jurisdiction, must only authorise such a placement where there are “imperative considerations of necessity” and where there has been strict compliance with the matters contained in the Guidance issued by the President of the Family Division on 12 November 2019 in relation to placing a child in an unregistered children’s home (“the Guidance”) (see para 147 above) and with the addendum dated 1 December 2020 to the Guidance. Furthermore, if a placement is authorised in an unregistered children’s home then the court must monitor the progress of the application for registration in accordance with the Guidance and, if registration is not achieved, the court must rigorously review its continued approval of the child’s placement in an unregistered home.
175. The judgment of Lady Black is confined to the permissible use of the inherent jurisdiction in the context of the commission of an offence under section 11 of the Care Standards Act 2000. On that basis the decision in this case should not be taken as a wider-ranging precedent for the use of the inherent jurisdiction notwithstanding that the court is aware that some other criminal offence may be committed.– Lord Stephens, Judgment on BAILII (HTML version)
The Supreme Court unanimously dismissed the appeal, but held in particular that the use of the inherent jurisdiction to authorise the deprivation of liberty in this instance is permissible, but expressed grave concern about its use to fill a gap in the child care system caused by inadequate resources. The inherent jurisdiction is a means of providing protection for children whose welfare requires it. It has been described as the great common law safety net which lies behind all statute law. But it is subject to limits.
The conclusion of the judgment highlighted the wider issues raised at its start, principally the concern that so many children were being placed in secure accommodation under the inherent jurisdiction in units which, by definition, had not been approved by the Secretary of State under the statutory scheme. The Court of Appeal expressed concern that so many applications were being made to place children in secure accommodation outside the statutory scheme laid down by Parliament. It described the situation as “fundamentally unsatisfactory” (para 88).
197. The inherent jurisdiction plays an essential role in meeting the need as a matter of public policy for children to be properly safeguarded. As this case demonstrates, it provides an important means of securing children’s interests when other solutions are not available. As Bromley concludes,
“It is evident that the High Court’s inherent powers still have a useful role to play. As Sir James Munby P commented in respect of wardship, cases continue to demonstrate the continuing need for the jurisdiction, which ‘despite its antiquity, has shown, is showing and must continue to show a remarkable adaptability to meet the ever-emerging needs of an ever-changing world’. … [T]he inherent jurisdiction continues to provide an invaluable additional means of securing certain children’s interests who would otherwise not be safeguarded.” (p 797)Judgment (PDF). In the matter of T (A Child)  UKSC 3i5
You can download the: Press summary (HTML version)
Alternatively, you can download via BAILII: Judgment on BAILII (HTML version)