The High Court was asked to authorise restrictions on a child’s liberty when the statutory secure-accommodation route could not provide a suitable placement. The Supreme Court considered whether the inherent jurisdiction could protect a child in that gap, and what limits applied to its use.
The appeal concerned children whom a local authority considers must be deprived of liberty, and who meet the criteria for secure accommodation, but for whom no approved secure children’s home is available or whose needs are thought better met elsewhere. Lady Black described a continuing shortage of such homes and of specialist therapeutic provision. Courts had repeatedly authorised restrictive placements outside the statutory scheme, while describing the lack of resources as a crisis.
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T was a child in local authority care. The High Court authorised two successive placements in England under its inherent jurisdiction. Neither was approved secure accommodation. One was an unregistered children’s home and the other was registered as a children’s home.
T argued that consent made an order unnecessary. The judge was not satisfied that apparent consent could be relied on for the proposed arrangements. By the time of the Supreme Court hearing the authorisations had ended. The wider issue nevertheless mattered to other children in similar circumstances.
Section 100
Lady Black, with whom Lord Lloyd-Jones, Lord Hamblen and Lord Stephens agreed, rejected the argument based on section 100(2)(d). That provision prevents the inherent jurisdiction from conferring on a local authority power to determine a question connected with parental responsibility. The council already had parental responsibility under the care order and a duty to accommodate T. The order did not give it a new decision-making power. It authorised deprivation of liberty in identified placements under the care plans and treated that authorisation as compatible with article 5.
Section 100 was read as protecting the statutory scheme for compulsory intervention, while subsections (3) to (5) preserve a safety net. Leave was available because no approved secure place allowed a section 25 application, no other order could achieve the required authorisation, and it had not been shown that T did not need the placements. Her case was that consent made an order unnecessary, but the judge had found that her consent could not be relied on.
The statutory scheme and article 5
The late argument left the Court unable to decide whether T’s placements were “secure accommodation”, or to make its own finding that Placement 1 was a children’s home, although the council accepted that it was. Lady Black nevertheless held that “secure accommodation” depends on the accommodation and its purpose, not merely the regime inside it. Following Wall J, the accommodation must be designed for, or have as its primary purpose, restriction of liberty. Purpose-designed secure children’s homes are the clearest example. A specialised therapeutic placement will usually have care or treatment as its primary purpose. An order concerning a placement outside section 25 does not cut across that section.
Where no section 25-compliant place exists, she held that the inherent jurisdiction may fill the gap. That includes, in an extreme case, an unregistered children’s home, even though carrying on or managing such a home is an offence and the court cannot replicate inspection by Ofsted or the Care Inspectorate Wales. The court authorises but does not require the placement, and it does not authorise a crime. Use of the jurisdiction is justified only by imperative necessity: there must be absolutely no alternative, and the child or someone else must be likely to suffer grave harm if the court does not act. It is an imperfect, temporary stop-gap.
An order of this kind supplies the domestic legal basis required by article 5. The applicable law need not be statutory. Lady Black considered the existing case law, the analogous section 25 criteria, representation of the child, evidence of the proposed regime, the child’s views, liberty to apply and judicial review sufficient to make the procedure accessible, foreseeable and fair. She expressed no view on whether T’s placements were for “educational supervision”, because that had not been disputed below.
Consent and the limits of the jurisdiction
Consent matters because valid consent when restrictions are implemented may mean that there is no deprivation of liberty. A judge considering prospective authorisation faces a different question about the proposed arrangements. Lady Black declined to lay down a new general test. The findings below did not justify setting aside T’s orders.
Lord Stephens agreed and rejected the suggestion that authorisation is possible only where those operating the home would have a criminal defence. “Likely” harm means a real possibility that cannot sensibly be ignored given its nature and gravity. An unregistered placement also requires strict compliance with the President of the Family Division’s Practice Guidance of 12 November 2019 and the addendum of 1 December 2020, including monitoring of registration. Refusal or withdrawal of registration calls for an even stricter necessity test. He said this decision is not a precedent for other situations in which a criminal offence may be committed, and that articles 2 and 3 may require the same protective step, subject to article 5.
Lady Arden agreed that the appeal should be dismissed, while stressing that the jurisdiction has limits and must respect statute. Because section 11 of the Care Standards Act 2000 criminalises the person who carries on or manages an unregistered home, rather than the court order itself, she found no legislative intention to exclude the jurisdiction in a case of absolute necessity. The order confers no immunity. She confined those additional reasons to the exceptional class put forward by the Secretary of State and did not extend them, in this appeal, to children under 16. She expressed no view on whether the United Kingdom was in breach of the Convention.
Verdict: The Supreme Court unanimously dismissed T’s appeal. The High Court could use its inherent jurisdiction in the exceptional circumstances considered. It did not thereby license the operation of an unregistered home or offer a general substitute for statutory secure accommodation.
