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Restriction of liberty under the inherent jurisdiction (Re T (a child) (secure accommodation order)
Date:24 OCT 2018

Richard Little, barrister at 42 Bedford Row Chambers, advises that the decision in Re T (a child) (secure accommodation order) is a timely analysis of how the High Court exercises its inherent jurisdiction to restrict a young person’s liberty in cases in which a local authority would have sought a secure accommodation order under section 25 of the Children Act 1989 (ChA 1989) if an approved placement was otherwise available.

Re T (a child) (secure accommodation order) [2018] EWCA Civ 2136, [2018] All ER (D) 29 (Oct)

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What are the practical implications of the judgment?

This is a timely analysis of how the High Court exercises its inherent jurisdiction to restrict a young person’s liberty in cases in which a local authority would have sought a secure accommodation order under ChA 1989, s 25 if an approved placement was otherwise available.

The judgment reminds practitioners that the inherent jurisdiction can be used to meet the needs of vulnerable young people if a ChA 1989, s 25 approved placement is unavailable, but that is important nevertheless for the High Court to adhere to the ChA 1989, s 25 scheme.

The case provides a thorough consideration of the domestic and European jurisprudence on the issue of a young person providing consent to such a placement.

Practitioners are also reminded of the wider issues at stake with the development of these two different processes for restricting a young person’s liberty—as well as the unsatisfactory situation of the court having to make decisions about the suitability of placements that are not approved by the Secretary of State.

What was the background?

The case concerned a young person who was 15 years old at the time of the first instance hearings. The young person was subject to a full care order and was competent in regard to Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 FLR 224, [1985] 3 All ER 402.

The local authority sought a declaration authorising restriction of the young person’s liberty in order to place her in a restrictive care regime. The young person consented to the proposed regime.

The High Court judge held that when deciding an application under the inherent jurisdiction for the restriction of liberty, the court had to be satisfied that the young person was not consenting to the placement.

The judge then went on to find that the young person’s stated consent fell short of having an ‘enduring’ quality and therefore he was not satisfied there was actual valid consent. Having considered the other circumstances of the case, the judge granted the declaration sought by the local authority.

The young person appealed on the basis that there was no need to require that the consent had an ‘enduring’ quality.

What did the court decide?

The Court of Appeal made clear that it was addressing only cases that would otherwise fall to be dealt with by the ChA 1989, s 25 secure accommodation order scheme.

McFarlane P decided (Moylan and Peter Jackson LJJ agreeing) that a lack of valid consent was not a prerequisite to the exercise of the inherent jurisdiction authorising restriction of the liberty of a young person.

There were four bases to this conclusion:

  1. The consent, or otherwise, of the young person is not a relevant factor in the ChA 1989, s 25 scheme

  2. There is no domestic authority to the effect that it is necessary to find an absence of valid consent before the court may authorise a local authority to restrict the liberty of a young person

  3. To hold otherwise would be to confuse the distinct temporal perspectives of Article 5 of the European Convention on Human Rights (ECHR) and an application for authorisation

  4. It would also mistake the purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation

It followed that the High Court judge had been in error to accept that it was necessary for the court to find a lack of valid consent before it could grant the local authority’s application. It then became irrelevant if the judge was correct in deciding whether or not the consent was ‘enduring’ because it was not a jurisdictional requirement anyway.

The Court of Appeal went on to find that the High Court judge was not in error in the exercise of his discretion to grant authorisation to the local authority to restrict the young person’s liberty—the appeal was dismissed.

Beyond the ambit of the appeal itself, the Court of Appeal recognised that a parallel system of inherent jurisdiction and ChA 1989, s 25 decision-making now existed.

It was held that the requirements of the ChA 1989, s 25 scheme should be treated as applying in the same way when a local authority is placing a child, or proposing to place a child, in the equivalent of secure accommodation.

This meant that neither the local authority nor the consent or agreement of the child could authorise such a placement.

While the Court of Appeal noted that it would be difficult to argue against the use of the inherent jurisdiction to protect young people when their welfare demanded it, this parallel system raised important questions to be considered elsewhere.

McFarlane P expressed concern in his judgment as to young people ‘being placed in units which, by definition, have not been approved as secure placements by the Secretary of State when that approval has been stipulated as a pre-condition by Parliament’. What wider issues does this decision raise for practitioners?

One immediate issue is of practicality. How can it be evidenced that the placement will meet the needs of the child? If a secure placement approved under the statutory scheme is not available, the court is not able to conduct its own inspection of the accommodation instead being proposed. Practitioners need to consider what evidence can be provided to the court about the suitability of the placement. The Court of Appeal recognised this is not necessarily as an easy task where a local authority, as is often the case, is looking to place a young person in a placement far away from their home and the social workers are unlikely to have firsthand detailed knowledge of the placement. McFarlane P noted this situation was fundamentally unsatisfactory.

More broadly, the Court of Appeal recognised the dual process of the statutory scheme and the inherent jurisdiction raised the following important questions:

  1. what is the impact, if any, on children if two parallel processes are in use

  2. is there a disparity in the adherence to due process obligations or in the safeguarding a child’s access and participation in court decisions between these two processes

  3. is there a disparity in the practical protection afforded to children through the two processes, which may result in arbitrary unfairness

  4. what are the effects on the ECHR rights of children and the protection of their Article 5 and 6 ECHR rights of having two processes and in particular when does Storck v Germany [2005] ECHR 406 apply

The Court of Appeal directed that a copy of the judgment in this case be sent to the Secretary of State for Education, the Secretary of State for Justice, the chair of the Education Select Committee, the chair of the Justice Select Committee, the Welsh government and the Commissioner for Children. It will be interesting to see how each respond in due course.

Richard Little’s practice mainly comprises all aspects of children law work. In the public children law field, Richard advises and acts for local authorities, parents and guardians at all levels of court. He also undertakes complex private law children work with a particular emphasis on international leave to remove cases. In Re T, Richard was one of the junior counsel, alongside Siobhan Kelly and Simon Rowbotham for the Association of Lawyers for Children, led by Deirdre Fottrell QC.

Interviewed by Kate Beaumont.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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