Derby City Council v BA
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 03 November 2021 |
| Neutral Citation | [2021] EWHC 2931 (Fam) |
| Docket Number | Case No: FD21P00578, FD21P00627 and FD21P00653 |
| Year | 2021 |
| Court | Family Division |
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[2021] EWHC 2931 (Fam)
THE HONOURABLE Mr Justice MacDonald
Case No: FD21P00578, FD21P00627 and FD21P00653
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Case No. FD21P00578
Ms Lorraine Cavanagh QC and Mr Shaun Spencer (instructed by Derby City Council) for the Applicant
Mr Richard Drabble QC and Mr Christopher Barnes (instructed by Bhatia Best) appeared for the First Respondent
The Second Respondent did not appear and was not represented
Mr Brendan Roche QC and Ms Kathleen Hayter (instructed by Kieran Clarke Green Solicitors) for the Third Respondent
Mr Jonathan Auburn QC (instructed by Government Legal Department) for the First Intervenor
Ms Joanne Clement (instructed by Ofsted) for the Second Intervener
Case No. FD21P00627
Ms Lorraine Cavanagh QC and Mr Shaun Spencer (instructed by The Council of the City of York) for the Applicant
Ms Julia Cheetham QC and Mr Stephen Thornton (instructed by Newtons) appeared for the First Respondent
The Second Respondent did not appear and was not represented
Ms Nageena Khalique QC and Ms Eleanor Morrison (instructed by Freeman Johnson) for the Third Respondent
Mr Jonathan Auburn QC (instructed by Government Legal Department) for the First Intervenor
Ms Joanne Clement (instructed by Ofsted) for the Second Intervener
Case No. FD21P00653
Mr Martin Westgate QC and Mr Chris Cuddihee (instructed by Plymouth City Council) for the Applicant
The First and Second Respondent did not appear and were not represented
Ms Sarah Morgan QC and Mr Patrick Paisley (instructed by The Family Law Co.) for the Third Respondent
Mr Jonathan Auburn QC (instructed by Government Legal Department) for the First Intervenor
Ms Joanne Clement (instructed by Ofsted) for the Second Intervener
Hearing dates: 18 and 19 October 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email. The date and time for hand-down is deemed to be at 12 noon on 3 November 2021.
INTRODUCTION
On 8 September 2021 I handed down judgment in four cases heard together (MA21P01965, FD21P00578, FD21P00472 and MA21P02001) one of which, FD21P00578, is again before the court. In that judgment, I decided that it remains open to the High Court to authorise, under its inherent jurisdiction, the deprivation of liberty of a child under the age of 16 where the placement in which the restrictions that are the subject of that authorisation will be applied is prohibited by the terms of the statutory scheme (as amended from 9 September 2021 by the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021), subject always to the rigorous application of the President's Guidance of November 2019 entitled Practice Guidance: Placements in unregistered children's homes in England or unregistered care home services in Wales (hereafter, ‘the Practice Guidance’) and the addendum thereto dated December 2020.
The judgment in that first cohort of cases was published as Tameside MBC v AM & Ors (DOL Orders for Children Under 16) [2021] EWHC 2472 (Fam). Following that judgment, I listed each of the four cases in the cohort before me separately to deal with the merits and, applying the principles set out in the judgment, made orders in each case. Within this context, on 9 September 2021 I made an order in case FD21P00578 authorising the deprivation of liberty of the subject child in those proceedings, CK. On 7 October 2021, I granted permission to appeal against the order made in case FD21P00578 on the application of the first respondent mother in those proceedings. That appeal is listed to be heard by the Court of Appeal on 16 and 17 November 2021. In circumstances where that appeal remains to be determined, the first respondent mother in case FD21P00578 has proceeded on the basis that it remains open to the High Court to authorise, under its inherent jurisdiction, the deprivation of liberty of a child under the age of 16 in a placement prohibited by the terms of the statutory scheme, without prejudice to arguments that she may advance on appeal disputing that proposition.
This judgment concerns a further question that has now arisen in three cases, including FD21P00578, concerning the range of circumstances in which the jurisdiction I found subsists may be applied. Namely, whether, given the central role accorded to the President's Guidance by the Supreme Court in Re T and by this court in Tameside MBC v AM & Ors (DOL Orders for Children Under 16), it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the Practice Guidance. The spectrum of the submissions made to the court on this question has been bracketed at one end by the submission of each of the local authorities that the answer to this question is “yes”, and at the other by the submissions of the Secretary of State for Education and Ofsted that the answer to this question is “no”. Whilst each of the cases before the court concerns a child under the age of 16, the answer to the question posed in this case is applicable to all cases in which the Practice Guidance applies.
The court is grateful to the Secretary of State for Education and to Ofsted for again accepting the invitation to intervene and I have once again had the benefit of written and oral submissions on behalf of the Secretary of State from Mr Jonathan Auburn of Queen's Counsel, and on behalf of Ofsted by Ms Joanne Clement of counsel. I am further grateful to all leading and junior counsel for the parties, who I shall identify below, for their written and oral submissions in this matter. I address the substance of the submissions made on behalf of the parties and the intervenors, where necessary to do so, during the course of the judgment.
BACKGROUND
The background to the three cases with which the court is concerned can be stated relatively shortly for the purposes of determining the legal question before the court. There was no substantive dispute regarding the matters of fact summarised below in respect of each case.
FD21P00578
Derby City Council is represented by Ms Lorraine Cavanagh of Queen's Counsel and Mr Shaun Spencer of counsel, applies for permission to apply for an order under the inherent jurisdiction of the High Court and an order under the inherent jurisdiction authorising the deprivation of the liberty of CK. The application was issued on 25 August 2021. CK was born in 2006 and is now aged 15 years old. CK is represented through her Children's Guardian by Mr Brendan Roche of Queen's Counsel and Ms Kathleen Hayter of counsel. CK's mother, BA is represented at this hearing by Mr Richard Drabble of Queen's Counsel and Mr Christopher Barnes of counsel. CK's father, OM, does not appear before the court and is not represented.
The background to case number FD21P00578 is set out in my previous judgment, which should be read with this judgment. On 12 November 2019, the local authority issued care proceedings in respect of CK under Part IV of the Children Act 1989 on the grounds that she was beyond parental control for the purposes of s. 31(2)(b)(ii) of the 1989 Act. This followed a period during which CK was frequently excluded from school, physically assaulted her sibling and exhibited behaviour that was difficult to manage, including assaults on the police and her mother and physical aggression against property frequent absconding, arrest by the police, self-harm and attempted suicide. Between April 2019 and December 2019 CK had over 100 missing episodes and 6 incidents leading to her involvement with the police as a result of her criminal activity. On occasion, CK has stated that she has a voice in her head that she is unable to get rid of. CK regularly used drugs and alcohol to the extent of requiring medical attention.
On 21 May 2020 the local authority applied for a secure accommodation order in respect of CK pursuant to s.25 of the Children Act 1989. A secure accommodation order was granted on 22 May 2020 for a period of 12 weeks and CK was placed in an approved secure placement in Scotland. CK was made the subject of a final care order on 29 May 2020. The secure accommodation order was extended by the court on 21 August 2020 for a further 24 weeks, on 18 February 2021 for a further 12 weeks and on 11 May 2021 for a further 12 weeks. On 28 June CK's approved secure placement gave notice on the basis they could no longer meet her needs. CK's needs continue to exceed the ability of the secure estate to keep her safe.
On 28 July 2021 CK was detained under the Mental Health Act 1983. By the time of CK's discharge from detention under the Mental Health Act 1983, the local authority had not, despite an extensive search, been able to locate a registered placement for her to take the place of CK's approved secure placement. In the circumstances, CK was placed in unregistered provision with externally commissioned staff. On 25 August 2021 Newton J authorised a deprivation of CK's liberty in the unregistered provision until 1...
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A Mother v Derby City Council
...of the home either will not, or cannot, apply for registration: see Derby CC v CK and Others (Compliance with DOL Practice Guidance) [2021] EWHC 2931 (Fam) at 41 The Supreme Court in Re T held that the High Court can invoke the inherent jurisdiction to authorise a deprivation of liberty in......
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A County Council v A Mother
...to her.” 34 The other authority is a decision of MacDonald J in Derby CC v CK & Ors (Compliance with DOL Practice Guidance) (Rev1) [2021] EWHC 2931 (Fam). In that authority, which concerned unregistered placements, he said: “I am satisfied that the court should not ordinarily countenance t......