High Court ruling – Court can still agree children’s deprivation of liberty in placements banned by new law – inherent jurisdiction and imperative necessity
NCERCC are informed by the excellent article in Community Care
The law is being given close scrutiny and there have been a series of judgements.
A further judgement last week ruled that the court will still be able to use the inherent jurisdiction to authorise the deprivation of liberty of a child under 16 in a now-banned placement, in the child’s best interests.
In July the Supreme Court ruled, in Re T, that the High Court’s inherent jurisdiction could be used to authorise the deprivation of a liberty of a child in an unregistered children’s home, where accommodation was being provided with care. This was despite it being illegal for providers not to register such a setting. The Supreme Court found that such authorisation was permissible under “imperative conditions of necessity”.
In the High Court, drawing on the Supreme Court ruling, Mr Justice MacDonald concluded that the best interests test to determine whether the High Court’s inherent jurisdiction could be used to authorise a deprivation of liberty in a now-banned placement would need to be informed by whether conditions of “imperative necessity” obtained.
Though each case would turn on its own facts, in the absence of these conditions, it would be difficult for the High Court to authorise such a deprivation of liberty, he said.
In making such placements, the judge said local authorities should follow guidance issued in 2019 – and updated in 2020 – by the president of the family division of the High Court, Sir Andrew McFarlane.
Ofsted and the secretary of state for education, who had intervened in the case, had argued that such an order could only be authorised if there was no lawful placement available. However, Mr Justice MacDonald said it was not appropriate to define what was meant by conditions of imperative necessity, and said there were circumstances in which an order could be granted where there was such a lawful placement available.
In his conclusion, he said the inherent jurisdiction existed to ensure that laws passed by “however commendable their aims, do not inadvertently operate so as to do harm to children”.
“I can observe that, in the experience of this court, the prohibition on placing children under the age of 16 in unregulated accommodation contained in the amended statutory regime is not coming into force on 9 September 2021 in the context of local authorities choosing to utilise such placements for vulnerable children in great need.
“Rather, it is coming into force in the context of local authorities having no choice but to employ such unregulated provision due to the well-recognised acute lack of appropriate provision.”
Note
The local authorities in this case and Ofsted wanted the High Court to determine whether they also prohibited local authorities from placing children under 16 in unregistered children’s homes – settings providing accommodation and care that are not registered.
However, the court declined to do so, saying this issue did not impinge on the central point it was concerned with, regarding the scope of the inherent jurisdiction. Considering the lawfulness of a local authority placing a child under 16 in an unregistered children’s home also required a wider examination of the law than just the new regulations, which the court was concerned with in this case.