In late July, the Supreme Court ruled on the use of the inherent jurisdiction of the High Court in cases where a local authority seeks authorisation to deprive a child of their liberty in accommodation that has not been approved for this purpose. The case was brought by T, a young woman whose deprivation of liberty in unregistered and unregulated accommodation had been authorised by the court when she was a child. She appealed the decision of the Court of Appeal and questioned the lawfulness of such use of court powers. The Supreme Court unanimously dismissed T’s appeal.
Despite T’s circumstances changing substantially by the time the case was heard by the Supreme Court (her deprivation of liberty order had been discharged, she turned 18 and was living on her own), the court recognised that T’s (past) situation “continues to affect a significant number of children”:
- Looked after children who meet the criteria set out in Section 25 of the Children Act 1989 but for whom there is no accommodation available in a secure children’s home;
- Looked after children whose needs would be better met in accommodation other than a secure children’s home, according to the local authority’s assessment; and
- Looked after children who do not meet the Section 25 criteria but whose welfare requires an order authorising deprivation of liberty.
Supreme Court rules that inherent jurisdiction can be used in deprivation of liberty applications, calling it an imperfect but necessary stop gap
This case concerned T who at the age of 15 was looked after by a Welsh local authority (under a care order). T initially lived in a secure children’s home. When her needs changed, the local authority applied to the High Court to authorise different accommodation in England which was not registered as a children’s home, nor was it approved for use as secure accommodation, in circumstances that would involve T being deprived of her liberty. The court authorised this and T moved but after a few months the placement became untenable. Following a new application, the court authorised the local authority to deprive T of her liberty in a registered children’s home that was not approved for use as secure accommodation.
The issues examined by the Supreme Court
The Supreme Court examined two key questions raised by T:
- Can the High Court use its power of the inherent jurisdiction to authorise a local authority to deprive a child they are looking after of their liberty in accommodation that has not been approved for this purpose?
T argued that such use of the inherent jurisdiction is prohibited in law, that it is contrary to the statutory scheme set out in the Children Act 1989 and that it breaches the European Convention on Human Rights.
- Should the child’s consent to deprivation of liberty affect the court’s decision when an application for the authorisation of deprivation of liberty is made by a local authority?
T argued that consent is highly relevant in a context where a court is deciding what is in a child’s best interests and that no order should have been made in her situation because she had given consent to the proposed care and living arrangements, and that her consent was all that was required.
Overview of the law
Social care is a devolved area of law and separate statutory schemes govern children’s social care in England and Wales (though there is overlap). The Supreme Court analysed both the English and Welsh law, but in this summary, we focus on the law in England only.
- Use of accommodation for restricting liberty
Section 25 of the Children Act 1989 governs the circumstances in which a child who is being looked after by a local authority in England and Wales may be placed in accommodation provided for the purpose of restricting liberty. Section 25, along with accompanying Regulations, restricts the use of secure accommodation to limited and very specific circumstances; requires the courts to determine whether the ‘threshold’ for a secure accommodation order is met; and sets time limits on children living in secure accommodation.
[To find out more about Section 25, read the August 2020 issue of our digest where we covered ‘the six questions a court must explore before making a secure accommodation order’].
- Secure children’s homes
A children’s home is defined in the Care Standards Act 2000 as an establishment which “provides care and accommodation wholly or mainly for children” and there is a legal requirement to register a children’s home with Ofsted.
Regulations define secure accommodation as that “which is provided for the purpose of restricting the liberty of children to whom section 25 [of the Children Act 1989] applies” and require the Secretary of State for Education to approve the use of a children’s home as secure accommodation.
- The inherent jurisdiction of the High Court
The inherent jurisdiction is the High Court’s power to issue a decision in a case where there is no statutory basis for what is being asked. In other words, a decision is needed from the court but there is no specific law that can be used to justify the application being made. Only the High Court can use (“exercise”) the inherent jurisdiction.
The use of the inherent jurisdiction as a means of protecting children whose welfare requires it has a long history that predates the Children Act 1989. When the Children Act 1989 was introduced, it changed children’s ‘entry routes’ into care by setting out clear criteria under which local authorities could intervene in the lives of children and families. These criteria are set out in different sections of the Children Act 1989 – care and supervision orders (Section 31); interim care and supervision orders (Section 38); Special Guardianship Orders (Section 14A). In order to ensure that the new care and supervision regime set out in the Children Act 1989 was complied with, Section 100 of the Children Act 1989 introduced safeguards and limitations on the use of the inherent jurisdiction while preserving its availability where children’s welfare requires it. For instance, permission from court is needed before applying for an order under the inherent jurisdiction and its use is only allowed in specific circumstances. The option of turning to the courts to exercise the inherent jurisdiction is a “safety net” because it allows common law (judge-made law) to fill the “gaps left by that law”.
- Deprivation of liberty and the European Convention on Human Rights
Article 5 of the European Convention on Human Rights protects children’s (and adults’) right to liberty and security by setting out the grounds (reasons) which may justify deprivation of a person’s liberty and requiring that the procedure prescribed by national law is followed. The relevant law and procedure can be set out in legislation (primary or secondary) or in common law (case law). The Convention also requires that where domestic law authorises deprivation of liberty of a person, that law must not be arbitrary (it must be “sufficiently accessible, precise and foreseeable”). Importantly, Article 5 grants every person who is deprived of their liberty the right to apply to court to determine whether deprivation of liberty is lawful.
The court’s decision: issue 1: use of the inherent jurisdiction
T argued that because the accommodation she lived in was “provided for the purpose of restricting liberty”, it automatically made it secure accommodation within the ambit of Section 25 of the Children Act 1989. T also believed that both places where she lived were children’s homes and, based on this, she argued that the use of the inherent jurisdiction in her situation side-stepped the existing law (Section 25). She also felt that using the inherent jurisdiction in this way “permits the most vulnerable of children to be placed without the protection of the express provisions of the statute about secure accommodation”.
In T’s circumstances, an application under Section 25 of the Children Act 1989 could not be made because no approved secure accommodation was available, therefore the only option available to the local authority was to seek authorisation under the inherent jurisdiction.
Turning to the issue of compliance with Article 5 of the European Convention on Human Rights (ECHR), authorisation from a court means a breach of Article 5 does not arise. T argued that the law on the use of the inherent jurisdiction was not sufficiently ‘accessible’ or ‘precise’ and lacks definitive criteria for its use (is ‘not foreseeable’). She also argued that there is “an absence of proper safeguards in the procedure” for when decisions are made using the inherent jurisdiction.
The court dismissed T’s complaints and set out the following safeguards established in “considerable case law”:
- While the court itself does not control the details of any arrangements that are authorised for the purpose of deprivation of liberty, it does consider the arrangements proposed by a local authority carefully to assure itself they are appropriate.
- Case law requires local authorities to provide relevant evidence and to justify why the proposed arrangements “are necessary and proportionate in meeting the child’s welfare needs”.
- The courts explore the child’s views in each individual case.
- Additional safeguards include the option of any party, including the child, applying to the court “for further directions” and regular reviews by the local authority and the court.
It was also the court’s view that it has other duties under the ECHR, such as a positive duty created by Article 2 (right to life) to take steps to protect life where the state (which includes the national courts) knows that there is a real and immediate risk to the life of an identified individual. The same view was expressed by the court in relation to a positive duty arising from Article 3 ECHR – prohibition of torture.
The court acknowledged that unregistered and unregulated accommodation does not meet the requirements of the statutory framework and that important safeguards are absent in those situations (for instance the legal requirement to appoint three people, one of whom must be independent of the local authority, to review the child’s detention in secure accommodation), but the use of the inherent jurisdiction provides “the ultimate safety net”. Giving the leading judgment, Lady Black said: “Ultimately, however, I recognise that there are cases in which there is absolutely no alternative, and where the child […] is likely to come to grave harm if the court does not act […]. It is such imperative considerations of necessity that have led me to conclude that the inherent jurisdiction must be available in these cases. There is presently no alternative that will safeguard the children who require its protection.”
Decision: issue 2: relevance of consent
T believed that she had the capacity to consent to the care and living arrangements that were proposed by the local authority looking after her, that she wanted to live in the places proposed in her care plan and that she consented to the restrictions that were imposed on her and therefore it was not necessary to apply to court for orders authorising deprivation of her liberty. She believed that her consent was “all that was required”, “that it was important to her that confidence was placed in her decision” and that it would have been better for her welfare if the court “had been prepared to put weight on her consenting to the restrictive placements, rather than making its own order”. The Court of Appeal took a different view because it concluded that T’s consent was not enduring or authentically expressed, and that lack of court authorisation would make her deprivation of liberty unlawful and in breach of Article 5 of the ECHR.
The Supreme Court reminded all parties in the case that “the importance of ascertaining and taking into account children’s wishes and feelings about all aspects of their lives is well established”. The court also accepted T’s views that that it was of particular significance to her that her views should be respected. However, it concluded that “an apparently balanced and free decision made by a child may be quickly revised and/or reversed” and, furthermore, a child in T’s circumstances may feel under pressure to consent to proposed arrangements.
When considering an application for an authorisation of deprivation of liberty, “any consent on the part of the child will form part of the circumstances that [the court] evaluates” in making its decision. Nevertheless, the final decision “must depend upon the facts” and the role of the court is to protect the child. The court stressed the importance of respecting the child’s personal autonomy by involving them fully in the proceedings and creating opportunities for the child to express their views about the care that is being proposed.
The court also pointed out that in circumstances where the child’s consent to proposed restrictions is “valid and sufficient”, the issue of deprivation of liberty would not arise.
Judges’ remarks about the “enduring” lack of suitable secure accommodation
Lady Black expressed “deep anxiety” about the current system “struggling to provide for the needs of children without the resources that are required” and acknowledged that the use of the inherent jurisdiction “is only an imperfect stop gap, and not a long term solution”. Lord Stephens pointed out “the enduring well-known scandal of the disgraceful and utterly shaming lack of proper provision for children who require approved secure accommodation” adding that “the appropriate permanent solution is the provision of appropriate accommodation”. Lady Arden added that “this problem is clearly not a new one” and that is “not entirely clear […] why the Secretary of State cannot or cannot yet enable all children who need to do so to enjoy the security of a registered home”. She went on to say that “it is not satisfactory that the courts should be used to address not just a specific gap but a systemic gap in the provision of care for children”.