How should the courts respond to the shortage of provision for children and young people whose needs are such that they require special limitations on their liberty? At what point can – or must – a court decline to use its powers under the inherent jurisdiction to authorise the deprivation of liberty of such a child? And can the court take into account that the child is wanting to consent to the arrangements in deciding whether to make an order authorising them?
These were the questions which arose for determination by the Supreme Court in Re T  UKSC 35, handed down on 30 July 2021. The court was concerned with the position of children whom the relevant local authority consider require to be deprived of their liberty, and in relation to whom the statutory criteria for the making of a secure accommodation order under section 25 of the Children Act 1989 are satisfied, but who the local authority propose to place elsewhere than in a secure children’s home which is approved for that purpose. As Lady Black identified at paragraph 17:
There could be said to be two distinct categories of children within the group: (1) children who would be placed in a secure children’s home but there is no place available for them, and (2) children whose needs would, in the local authority’s assessment, be better met in an alternative placement. There will also be children who fall entirely outside the group because they are unlikely to satisfy the statutory criteria in section 25, although they do need to be deprived of their liberty to keep them safe.
The argument of the appellant was that the court could not use its inherent jurisdiction in order to authorise the deprivation of a child’s liberty in circumstances such as hers, on the basis that: (1) s.100(2)(d) Children Act 1989 prohibits it; it would cut across the statutory scheme in the Children Act 1989; and/or there be a breach of Article 5 ECHR. She also raised a supplementary argument in relation to the issue of her consent, submitting that, on the facts of her case, it was contrary to her best interests to make the order, given that she consented to the regime arranged for her.
The court’s summary can be found here. The summary which follows here breaks the judgment down by issue.
Section 100(2)(d) Children Act 1989
Lady Black, with whom Lord Lloyd-Jones, Lord Hamblen and Lord Stephens agreed), had little truck with the argument in relation to s.100(2)(d) Children Act 1989, explaining that s.100 was designed to “ensure that the statutory scheme which the Act was establishing in relation to the intervention of local authorities in the lives of children and families would not be undermined, or evaded, by the use of the inherent jurisdiction” (paragraph 116), and that its provisions were shaped to “to confine the local authority to orders otherwise available to them, but building in a safety net [in the form of the inherent jurisdiction] where those other orders would not achieve the required result in a risky situation” (paragraph 119).
The statutory scheme of the Children Act 1989
Because of the way in which the case had evolved, it was impossible to make factual findings in relation to the actual placements in which T had been placed, but Lady Black observed that it was clear from other cases in the law reports that the inherent jurisdiction is being used to authorise the placement of children in accommodation which should be registered as a children’s home, but is not so registered (paragraph 129). Nor was it was possible to determine whether the accommodation in question was “secure accommodation” for purposes of s.25 CA 1989, although Lady Black built on her analysis of the concept of secure accommodation begun in Re D. Lady Black noted that there would be placements:
which can properly be said to be “secure accommodation” within the meaning of section 25, but which cannot be used as such because they are children’s homes and have not been approved by the Secretary of State in accordance with regulation 3 of the 1991 Regulations (see para 47 above). The argument that the making of an order, under the inherent jurisdiction, authorising placement in accommodation of this type, would cut unacceptably across the statutory scheme cannot be dismissed easily.
140. Lord Lloyd-Jones asked during the hearing what the Secretary of State said a judge could do where the child meets the section 25 criteria but there is no approved secure accommodation available. Given the serious shortage of approved placements, this is clearly a question of the greatest importance. The Secretary of State’s response is that the inherent jurisdiction can be used to authorise deprivation of liberty of a child placed in a children’s home, and section 100(4)(a) is satisfied given that the local authority cannot achieve the result they seek through a section 25 order, assuming of course that the court is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if the inherent jurisdiction is not exercised, in which case section 100(4)(b) is also satisfied.
Lady Black noted that:
141. The Children’s Commissioner expressly invites the court to consider what would be the case were the inherent jurisdiction to be unavailable. How would local authorities comply with their statutory duties towards children who require secure accommodation which is unavailable? How would they discharge their parental responsibility for these children? The Welsh Government and Cafcass Cymru ask what the court would do in the sort of situation confronting it in this case, if it could not have recourse to the inherent jurisdiction. These are questions which underlie many of the submissions made to this court, and they are questions which have caused me profound anxiety, not least in view of the fact that judges and others have been drawing attention to the dangerous inadequacy of this aspect of the child care system for years, without any effective steps having been taken to solve the problem of resources for children with exceptional needs. Cases such as those to which I have alluded earlier in this judgment demonstrate, it seems to me, 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. If the local authority cannot apply for an order under section 25 because there is no section 25 compliant secure accommodation available, I would accept that the inherent jurisdiction can, and will have to be, used to fill that gap, without clashing impermissibly with the statutory scheme. (emphasis added)
The criminal law
Lady Black was particularly concerned as to:
145. […] whether 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 [under s.11 Care Standards Act 2000, by the person carrying on or managing the children’s home]. Ultimately, however, I recognise that there are cases in which 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. I also have to recognise that there are other duties in play, in addition to those which prohibit carrying on or managing an unregistered children’s home. I gave an idea earlier (see para 30 et seq) of the duties placed upon local authorities to protect and support children. How can a local authority fulfil these duties in the problematic cases with which we are concerned if they cannot obtain authorisation from the High Court to place the child in the only placement that is available, and with the ability to impose such restrictions as are required on the child’s liberty? 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.
In a concurring judgment, Lord Stephens (with whom Lord Lloyd-Jones, Lord Hamblen and Lady Black agreed) focused on the potential for criminal offences to be committed, holding that:
168. […] To my mind the central focus of this aspect of the inherent jurisdiction is on the welfare and safety of children rather than on the potential commission of a criminal offence under section 11 of the Care Standards Act 2000 by others. Obviously, that central focus requires the court to give anxious and detailed consideration to the risks to the child in respect of a placement in which such an offence may be committed. However, the High Court is not required to determine whether an offence will be committed or whether the individual has an available defence. It is sufficient for the court to be aware of the potential that such an offence may be committed by another and to examine how that impacts on the best interests of the child. It is no part of the court’s function to “authorise” the commission of any criminal offence. Any order under the inherent jurisdiction does not do so. Rather, if the inherent jurisdiction is used, then the court “authorises” but does not “require” the placement by a local authority of a child in an unregistered children’s home despite the potential that a person may be prosecuted for and convicted of an offence under section 11 of the Care Standards Act 2000. If a prosecution is brought, which it can be, then it is a matter for the criminal courts to determine whether an offence has been committed and if so, as to the appropriate sentence to impose.
169. The Secretary of State for Education, in his post-hearing submissions dated 3 June 2021 submits “that the High Court’s inherent jurisdiction can be used to authorise an unregistered placement, but only in circumstances … where a defence to the crime in section 11 of the [Care Standards Act] 2000 can be made out” (emphasis in the original). The defences postulated are “necessity/duress of circumstances”. I agree with the submission of the Secretary of State that the inherent jurisdiction can be used but reject the proposed qualification as to the circumstances in which it can be used. The existence of a defence to a criminal charge misplaces the focus of the inherent jurisdiction which at all times is on the child. The inherent jurisdiction is available despite the potential that a person may be prosecuted for and convicted of an offence under section 11 of the Care Standards Act 2000: that possibility does not abrogate or restrict the inherent jurisdiction. The jurisdiction exists to protect children, not to decide issues of criminal liability.
Lord Stephens emphasised (at paragraph 170) that:
the courts, in the exercise of the inherent jurisdiction, must only authorise such a placement [in an unregistered children’s home] 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.
Lord Stephens was fortified in his consideration of the position by consideration of the positive operational duty under Articles 2 and 3 ECHR:
175. The positive operational duty to protect life under article 2 arises where the state, or in this case the High Court as a public authority, has actual or constructive knowledge that there is a real and immediate risk to the life of an identified individual or individuals. If the duty arises then it falls to be discharged by public authorities, including by the High Court but this does not necessarily mean that action, or any particular action, needs to be taken. Rather the nature of the action depends on the nature and degree of the risk and what, in the light of the many relevant considerations, the public authorities, including the High Court, might reasonably be expected to do to prevent it. In this way the positive operational measures must be chosen with a view to offering an adequate and effective response to the risk to life as identified. However, any measures taken must remain in compliance with the other obligations under the ECHR, including article 5. So, for positive operational measures involving a deprivation of liberty to be permissible under article 5, any deprivation of liberty must be both lawful under the domestic law of the United Kingdom, (which law includes the inherent jurisdiction) and in compliance with the exhaustively enumerated grounds for detention set out in article 5(1). In relation to the application of article 5 in cases of this nature I refer to the judgment of Lady Black at para 87 above. These principles in relation to article 2 can be discerned from, amongst other authorities, Osman v United Kingdom (1998) 29 EHHR 245, Kurt v Austria (Application No 62903/15) 15 June 2021 and Rabone v Pennine Care NHS Trust  UKSC 2;  2 AC 72. In the context of this case the many relevant considerations in respect of the content of any positive operational measures include the impact, if any of the lack of registration. The fact that a criminal offence under section 11 of the Care Standards Act 2000 may be committed by others does not relieve the court from taking the positive operational step of placing a child in an unregistered placement in order to discharge its duty under article 2 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” (para 145 above). Again, there must be “imperative considerations of necessity” (ibid) together with strict compliance with the Guidance and the addendum.
A similar approach applied in relation to Article 3: paragraph 176, so that Lord Stephens considered that there “there is coherence between the common law and the requirements of articles 2 and 3 ECHR, so that the outcome under both the common law and under the ECHR where the positive operational duty is engaged will be the same.”
Lady Arden gave a separate judgment on the issue of the limits of the inherent jurisdiction, agreeing with the judgments of Lady Black and Lord Stephens on the issue. She was specifically concerned with the implications of s.11 Care Standards Act 2000. She noted that, on the Secretary of State’s case,
the placements for which the exercise of the inherent jurisdiction is required are those where “local authorities … need to create urgently a ‘bespoke’ and highly specialised solo placement for the child to meet their immediate needs by keeping them safe while therapeutic work is carried out and/or alternative (registered) placements are being identified.” It is these placements which on the Secretary of State’s case will often not be registered at the time they are required. The court is therefore concerned with a very limited and exceptional class of case.
Lady Arden noted that:
Parliament has now made a statutory instrument which as of September 2021 prohibits local authorities in England and Wales from placing children under 16 years in an unregistered home (Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021/161, regulation 4). I proceed on the basis that the Secretary of State is not asking the court to exercise its jurisdiction in this appeal to authorise the placement of a child under that age in an unregistered home. In this judgment, I go no further than the Secretary of State invites us to do in relation to the children of 16 years and above in the passage that I have set out. Any other application will have to be considered on its merits.
Lady Arden observed (at paragraph 185) that:
it is not entirely clear to me from the Secretary of State’s submissions 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. This problem is clearly not a new one. It may require more resources and/or the acceleration of the processes of registration if that can be achieved. Policy may be evolving on these issues and that may be why the inherent jurisdiction is invoked. 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. Our conclusion in this case does not address or resolve the underlying cause of the problem, and no doubt will add materially to the workload of the High Court judges of the Family Division.
Lady Arden was at pains to identify that “the distinctive inherent jurisdiction in relation to safeguarding children must nonetheless form a coherent part of the wider law. Moreover, parties cannot expect the inherent jurisdiction to be available in every conceivable case. Hence the search for any limits” (paragraph 188), such that
189. […] Where the field is already populated by intense statutory regulation, it should in general only be used in cases where there is a high degree of necessity about its exercise: the court must in general be left with no alternative if it is to fulfil an important objective within the inherent jurisdiction. That might be because of urgency and the lack of the availability of an alternative, coupled with appropriate conditions attached by the court to the exercise of the inherent jurisdiction.
190. The Court must also, as it seems to me, respect Parliamentary sovereignty and the separation of powers. So, the question becomes not simply whether by authorising the local authority to place a child in an unregistered home a criminal offence would be committed. Rather the question is whether there is legislative intent in section 11 of the 2000 Act to exclude the inherent jurisdiction of the court.
Lady Arden ultimately considered that there had not been such a legislative intent, at least in cases of absolute necessity, because (in essence) the criminal offence was visited upon the operator of the home, rather than upon the court exercising the inherent jurisdiction.
Article 5 ECHR
Lady Black considered that, once a court order authorising the deprivation of liberty under the inherent jurisdiction had been made, such must be in accordance with domestic law purposes – i.e. a procedure prescribed by law for Article 5 ECHR (see paragraph 150). She also considered, contrary to the appellant’s arguments, that the “law as to the exercise of the inherent jurisdiction in this area is, in my view, sufficiently accessible and foreseeable with advice. Outcomes need not be predictable with absolute certainty, and in this area of the law, it is important that flexibility is retained, in order that the courts can respond appropriately to the many different sets of circumstances that arise” (paragraph 152), and that there were appropriate procedural safeguards built in, “broadly mirroring those applicable to a section 25 application” (paragraph 153). Insofar as adjustments were required, Lady Black considered that those should be “the province of judges who have experience of dealing with these cases in practice and of the Court of Appeal” (paragraph 154).
In discussing the limits upon the inherent jurisdiction, Lady Arden in her concurring judgment noted that the limits upon the right to liberty provided for by Article 5(1)(d) must be strictly observed:
195. […] It seems to me that that has to be an essential part of any exercise of any inherent jurisdiction in this area in any future case: see section 6 of the Human Rights Act 2000. Although the matter does not arise on this appeal, it may be a matter which family judges may wish to be specifically mindful of when reviewing the care plan for the child.
196. I would, however, wish to express no view on the question whether the exercise of the inherent jurisdiction in the circumstances of this case leaves the UK in breach of the Convention. Protecting the child under the inherent jurisdiction is what the High Court did in DG v Ireland (2002) 35 EHRR 33. The accommodation in the penal institution into which the child was placed was modified for the child’s needs and to reflect the fact that the child was not there for a breach of the criminal law, but that did not prevent the state from being in breach of article 5 because it had not provided sufficient facilities for very difficult children under the statutory powers conferred on courts.
Lady Black found a fundamental difficulty in relation to this argument to be the way in which it had evolved during the proceedings, such that it was entirely academic. She therefore was brief in her observations, and made clear (at paragraph 157) that she had no “intention, in what I say, of setting up new tests to be applied in cases of this type. This is an area in which it is uncommonly difficult to choose language which captures the position with precision, and that difficulty is compounded by the fact that the problem has to be addressed in the abstract.”
Lady Black noted (at paragraph 161)
This is not the occasion for a comprehensive exploration of the complications attending consent to deprivation of liberty. For the moment, it is enough to observe that, even leaving to one side difficult issues about the pressures that circumstances may place on a child to consent to a proposed arrangement, an apparently balanced and free decision made by a child may be quickly revised and/or reversed. The facts of this case clearly demonstrate how insecure may be the child’s apparent consent. Having said that, there may also be cases in which the child is expressing a carefully considered and firm view.
Taking into account the importance of ascertaining and taking into account children’s wishes and feelings about all aspects of their lives is well established, the proper way to proceed was thus:
162. When the court considers the local authority’s application, any consent on the part of the child will form part of the circumstances that it evaluates in deciding upon its order. I would not presume to forecast, still less dictate, what its implications would be for any particular case. That must depend upon the facts. The child needs to be, and is, protected by the institution of the proceedings and the consequent involvement of the court. His or her personal autonomy will be respected by being fully involved in those proceedings, and able to express views about the care that is being proposed, as ensured by the procedures stipulated by statute (for section 25) and by case law (for the inherent jurisdiction). It is worth noting that, in a case where the local authority is authorised to deprive the child of his or her liberty but, when it comes to putting the restrictive arrangements into practice, the child is in fact consenting to them in circumstances where that consent is valid and sufficient, there would be no deprivation of liberty. In that situation, the local authority would simply be providing the child with accommodation.
Although dismissing the appeal, Lady Black noted at paragraph 163 that:
I have punctuated this judgment with expressions of my deep anxiety that the child care system should find itself struggling to provide for the needs of children without the resources that are required. I reiterate this in concluding. It is fortunate that the inherent jurisdiction is there to fill the gaps in the present provision, but it cannot be doubted that it is only an imperfect stop gap, and not a long term solution.
Similarly, Lord Stephens agreed with Lady Black that recourse to the inherent jurisdiction in the face of this scandalous lack of provision should be a temporary measure: “[t]he appropriate permanent solution is the provision of appropriate accommodation. I add my name to the list of judges who have called attention to this issue which is a scandal containing all the ingredients for a tragedy.”
The language used by the Supreme Court justices in this case is stark, as was their reluctance to give judicial ‘cover’ for the failures of the state to provide adequate resources. However, through gritted teeth, they found it effectively impossible to ignore the alternative that not enabling the High Court to exercise its inherent jurisdiction to authorise deprivation of liberty in these circumstances would be worse.
It is perhaps to be regretted that they did not have the benefit of sight of the very recent judgment of MacDonald J in Wigan BC v Y (Refusal to Authorise Deprivation of Liberty)  EWHC 1982 (Fam) – arising in slightly different, but conceptually similar circumstances. However, had they done so, it is difficult to see that they would not have endorsed his conclusion that the High Court could not be asked to authorise deprivation of liberty where the arrangements were (as he described)
so inappropriate that they constitute a clear and continuing breach of his Art 5 rights. Within this context, the fact there is no alternative cannot by itself justify the continuation of those arrangements. All the evidence in this case points to the current placement being manifestly harmful to Y. Within that context, the absence of an alternative cannot render what is the single option available in Y’ best interests and hence lawful.