“Imperative conditions of necessity” justify deprivation of liberty of a 14-year-old child in an unregistered children’s home, decides High Court.
Background
This judgment concerns a 14-year-old boy referred to by the High Court as A. A has mental health difficulties, special educational needs and an attention deficit hyperactivity disorder (ADHD) diagnosis.
A is the subject of an interim care order. He is described in the judgment as a very vulnerable child and a victim of child criminal exploitation. A “regularly goes missing”, with 54 ‘missing episodes’ in a 9-month period, and he’s believed to have access to weapons. He is believed to be at risk of “sexual harm and … catastrophic injury or even death”. He is also considered to pose a risk of “both physical and sexual harm to others”, and “has been violent towards staff”. A’s circumstances are referred to by the Hight Court as “entirely consistent with county lines child criminal exploitation activity”.
At the time of the hearing, A lived in “an unregulated placement” [supported accommodation] and while he was said to have good relationships with the staff there, they were unable to prevent him from running away to ensure his safety.
The issue before the High Court
The local authority, which shares parental responsibility for A by virtue of the interim care order, applied to the High Court seeking authorisation for A to be deprived of his liberty in an unregistered children’s home. This was considered necessary to keep him safe and the local authority was unable to find an alternative, suitable accommodation for A.
A’s Cafcass guardian was supportive of the local authority’s application, as was A’s father who was present at the hearing.
A, however, was not aware of the local authority’s application as it was believed that he would run away. The High Court was therefore unable to take into account his views and wishes and considered it to be justified given the risks to A’s health and life.
The legal framework
Children Act 1989 Section 22(3)(a) places a general duty on local authorities to safeguard and promote the welfare of looked after children. Section 22C established a ‘hierarchy of accommodation’ options for looked after children. Where it is not possible for a child to live with their parent/s (or others who have parental responsibility for them), the local authority must place the child “in the placement which is, in their opinion, the most appropriate placement available” – section 22C(5). Placement options, set out in subsection (6), include: (a) placement with a relative, friend or other person connected with the child; (b) placement with a local authority foster parent; (c) placement in a children's home in respect of which a person is registered under Part 2 of the Care Standards Act 2000; or (d) subject to section 22D, placement in accordance with other arrangements which comply with the relevant regulations.
The Care Planning, Placement and Case Review (England) Regulations 2010 as amended by The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 and The Supported Accommodation (England) Regulations 2023. Regulation 27 concerns ‘General duties of the responsible authority when placing a child in other arrangements’ and states: Before placing a child in accommodation in accordance with other arrangements under section 22C(6)(d) [Children Act 1989], the responsible authority must— (a) be satisfied that the accommodation is suitable for the child and— (i) where that accommodation is specified in regulation 27C(1)(a), must have regard to the matters set out in Schedule 6, and (ii) where that accommodation is specified in regulation 27A or 27C(1)(b), must have regard to the matters set out in paragraph 2(a) of Schedule 6, (b) unless it is not reasonably practicable, arrange for the child to visit the accommodation, and (c) inform the IRO. Regulation 27A concerns ‘Prohibition on placing a child under 16 in other arrangements’ and states: A responsible authority may only place a child under 16 in accommodation in accordance with other arrangements under section 22C(6)(d) [Children Act 1989], where the accommodation is— (a) in relation to placements in England, in— (i) a care home; (ii) a hospital …; (iii) a residential family centre as defined in section 4(2) of the Care Standards Act; (iv) a school … providing accommodation that is not registered as a children’s home; (v) an establishment that provides care and accommodation for children as a holiday scheme for disabled children …; [See regulation 27A(b) for the requirements relating to children under the age of 16 being placed in accommodation in accordance with other arrangements in Wales and regulation 27A(c) in Scotland].
The High Court’s inherent jurisdiction The High Court’s inherent jurisdiction is an ancient ‘safety net’ power to make orders to protect highly vulnerable children and adults. It is a common law power, meaning it is derived from case law rather than an Act of Parliament. Section 100(4) Children act 1989 provides that the High Court may only grant leave for an application for it to exercise its inherent jurisdiction in respect of an individual child where there is no other statutory order available and there is reasonable cause to believe that the child is likely to suffer significant harm without the court exercising its inherent jurisdiction. [Learn more about the use of the High Court’s inherent jurisdiction to deprive children and young people of their liberty on pages 9-12 of our law map].
Human rights Article 5 of the European Convention on Human Rights (ECHR) grants everyone – children and adults – the right to liberty and personal security. It protects children (and adults) from unlawful deprivation of liberty. Article 8 ECHR guarantees the right to respect for private and family life, which includes psychological and physical integrity. There are three aspects of a child’s living conditions which will determine whether they are (or are not) deprived of their liberty for the purposes of article 5 ECHR: 1. They are confined for more than a negligible period (this is called the ‘objective element’); 2. They have not consented to their confinement, or cannot give consent because they lack the mental capacity to do so (this is called the ‘subjective element’); and 3. The state is involved to some degree in their confinement (this is called ‘state involvement’). If all three conditions apply, a child will be deprived of their liberty and article 5 ECHR will be engaged. They will also, separately, be protected by other ECHR rights, including article 8
The High Court’s analysis
Permission was granted for the local authority to apply for deprivation of A’s liberty using the High Court’s inherent jurisdiction. The High Court justified its decision by reference to the legal requirements set out in the Children Act 1989, as well as A’s human rights under the ECHR, as follows:
“I am satisfied that the results which the [local] authority wish to achieve could not be achieved through the making of any other order of a kind to which section 100(5) Children Act 1989 applies, and there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to A, he is likely to suffer significant harm; likely meaning a real possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in this case. I am satisfied that the proposed order does safeguard and promote the child’s welfare. I am satisfied that the order is proportionate in that the benefits of the proposed placement outweigh the infringement of his article 5 rights to liberty and article 8 rights to private and family life under the ECHR”. (Paragraph 22; emphasis added)
Restrictions on A’s liberty sought and authorised by the High Court
(1) 3:1 staff supervision while at the accommodation, as well as supervision when out in the community.
(2) Confinement within the accommodation, with alarms and locks fitted to doors and windows to prevent A from leaving without the staff being aware. A’s whereabouts to be monitored by staff at all times.
(3) Authorisation for staff to “physically intervene to prevent A from going missing”, including by physically restricting A’s movements. The High Court stipulated that an additional condition would be added, namely that “no member of placement staff should exercise any physical restraint of A unless they have provided evidence that they have been suitably and appropriately trained by a recognised trainer in safe restraint, that that is certified and that any necessary refreshers have also been undertaken and completed successfully”.
(4) In terms of restrictions on communication devices, the High Court confirmed that the local authority did not require the High Court’s authorisation in that it could introduce any necessary restrictions as part of exercising its parental responsibility for A for the purpose of safeguarding his welfare.
(5) 3:1 staff ratio and locked doors during transportation of A from his current accommodation to the new one.
The High Court justified the authorisation of these restrictions as follows:
“I am satisfied that the restrictions … amount to a confinement having regard to a comparative child of the same age. I am satisfied that the confinement is imputable to the state. The local authority, and [A’s parents] … cannot consent [to such confinement] in light of the interim care order in place. This is a placement in a presently unregistered children’s home. I am satisfied that the [local authority] has enquired around the whole issue of registration with Ofsted, and I am satisfied that the placement are in the process of applying for Ofsted registration, and they are an organisation that has other children’s homes that are Ofsted registered”. (Paragraph 24)
Re. A’s placement in unregistered accommodation
The High Court cited the Court of Appeal’s judgment, Re A Mother v Derby City Council [2021] EWCA Civ 1867 (07 December 2021), which confirmed that the High Court’s inherent jurisdiction may be used to authorise a deprivation of liberty of a child in an unregistered children’s home so long as the requirements set out by the Supreme Court in Re T are met:
“… where a local authority places a child under CA 1989 … in an unregistered children’s home, that placement is outside the statutory scheme established by CA 1989, section 22C [CA 1989] and [the Care Planning Placement and Case Review (England) Regulations 2010]. The Supreme Court determined in Re T that the High Court nevertheless has jurisdiction, in an appropriate case, to authorise that restrictions may be placed on the liberty of a young person placed in such a placement where imperative conditions of necessity justify doing so. … the [statutory] scheme does not allow unregistered placements but does not expressly prohibit them. In those circumstances, as in Re T, where conditions of imperative necessity require, the common law steps in and allows the High Court to exercise its inherent jurisdiction. That exercise of the inherent jurisdiction is not in breach of Article 5 [ECHR] and nor does it cut across the statutory scheme […]”. (Paragraphs 87-88 of [2021] EWCA Civ 1867; emphasis added)
The High Court’s decision
The High Court concluded that in A’s circumstances the risks are such that imperative conditions of necessity exist and deprivation of A’s liberty should be authorised for a period of six months, while stressing that “the necessity for and the use of restrictions should be kept under close review by the local authority and considered specifically at each looked after child review”.
You can read the full judgment here: Local Authority v A [2024] EWHC 2476 (Fam) (13 August 2024)
ADDITIONAL IMPORTANT INFORMATION (not drawn from the judgment summarised above) Advocates should start from the presumption that a child deprived of their liberty should be living in accommodation where they receive care (not supported accommodation) which is registered and inspected by Ofsted or Care Inspectorate Wales (CIW). Ofsted guidance (August 2023), ‘Placing children: deprivation of liberty orders’, states: A DoL order makes it lawful for a child to be deprived of their liberty. The court authorises the order and any restrictions are set out clearly in the order. The order allows these restrictions as a maximum – it does not mean that, as a provider, you must apply all the restrictions at all times (for example, if the need for the restrictions has reduced and this has been agreed with the child’s social worker). The order only makes the restrictions/deprivation of liberty lawful – it does not mean that the provider does not need to register with Ofsted or CIW if operating a children’s home or care home service. The court may refuse to authorise a deprivation of liberty order if the placement provider will not apply to register. President of the Family Division of the High Court (September 2023), ‘Revised practice guidance on the court’s approach to unregistered placements’, states that: The Courts when considering a DoL application should enquire into whether the proposed placement is registered or unregistered. If it is unregistered it should enquire as to why the local authority considers an unregistered placement is in the best interests of the child. The Court may order the local authority to inform Ofsted/CIW within 7 days if it is placing a child in an unregistered placement. ---------------- To learn more, please read our law map: deprivation of liberty.
