A Mother v Derby City Council
| Jurisdiction | England & Wales |
| Judge | Sir Andrew McFarlane,Lady Justice Simler,Lord Justice Baker |
| Judgment Date | 07 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1867 |
| Docket Number | Case No: CA-2021-000096 |
| Year | 2021 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1867
Sir Andrew McFarlane, PRESIDENT OF THE FAMILY DIVISION
Lord Justice Baker
and
Lady Justice Simler
Case No: CA-2021-000096
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Hon Mr Justice MacDonald
FD21P00578
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Drabble QC and Christopher Barnes (instructed by Bhatia Best) for the Appellant
Lorraine Cavanagh QC and Shaun Spencer (instructed by Derby CC and Tameside MBC) for the First Respondent and Third Intervenor
Brendan Roche QC and Kathleen Hayter (instructed by Kieran Clark Green) for the Second Respondent
Jonathan Auburn QC and Ruth Kennedy (instructed by Treasury Solicitor) for the First Intervenor
Joanne Clement (instructed by Ofsted) for the Second Intervenor
Hearing date: 16 and 17 November 2021
Approved Judgment
Sir Andrew McFarlane, President of the Family Division:
On 9 September 2021, the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 came into force amending the Care Planning, Placement and Case Review (England) Regulations 2010. The amended regulations make it unlawful for a Local Authority to place a looked after child in accommodation other than that which is expressly stated in Children Act 1989, s 22C(6)(a) to (c) (‘CA 1989’) or stated within the new r 27A.
In a judgment delivered on 8 September 2021, Mr Justice MacDonald, after hearing applications to authorise the deprivation of liberty of four young people, each in the care of different local authorities, but who were each under the age of 16 years, considered the following central question of law:
“The question of law before the court is whether 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 amended statutory scheme.”
The context within which the question considered by MacDonald J arose was the, sadly, now familiar one of a young person whose behaviour or other circumstances are such that the welfare of the young person requires that their liberty is restricted to an extent that would otherwise infringe their ordinary right to freedom which is enshrined within European Convention on Human Rights, Art 5 (‘ECHR’). In such cases the High Court has assumed jurisdiction to authorise the “deprivation of liberty” (“DOL”) of the young person to the extent that to do so is necessary, proportionate and in their overall welfare interests.
The lawfulness of the High Court's assumption of jurisdiction to authorise DOL in the case of children, generally, was considered by the Supreme Court in the case of Re T (A Child) [2021] UKSC 35; [2021] 3 WLR 643. The Supreme Court held that it was indeed lawful for the High Court jurisdiction to be deployed where the circumstances of a particular case established “imperative conditions of necessity” (a phrase used by Lady Black at paragraph 145 and endorsed by the other Supreme Court Justices).
MacDonald J concluded, at paragraph 68, 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 a placement that is prohibited by the terms of the Care, Planning, Placement and Case Review (England) Regulations 2010 as amended from 9 September 2021, without cutting across that amended statutory scheme”.
MacDonald J's conclusion is now challenged by the mother of one of the four young people whose case was before the court. The mother, who was not represented at first instance, was granted permission to appeal by MacDonald J and her appeal has now been presented by Mr Richard Drabble QC and Mr Christopher Barnes.
Before turning to the substance of the appeal itself, it is necessary to describe a further question of law which, whilst current in the first instance hearing, was expressly not determined by MacDonald J. The point turns upon an accepted distinction that exists between the role of the High Court, which is confined to authorising a local authority to deprive a young person of their liberty in particular circumstances, and the role of the local authority which actually makes the placement of the child and implements any restriction of liberty at any particular time. The further question of law which was not answered in the court below is whether the local authority retains the power lawfully to place a child in an unregistered children's home. The point arises because, whilst placement in “a children's home” comes within the list of statutorily authorised placements in CA 1989, s 22C(6)(c), such a placement is expressly restricted to a children's home “in respect of which a person is registered” [emphasis added] under the relevant statutory provision. MacDonald J concluded that, whilst the question of the legality of the placement was undoubtedly one for consideration by local authorities, it did not directly arise in the four cases before the court, where the focus was on the jurisdiction of the court, rather than the lawfulness or otherwise of any local authority's subsequent actions.
As will become apparent, that secondary, unaddressed, point of law lies at the centre of the present appeal and must now be determined by this Court.
The Appeal
Mr Drabble and Mr Barnes rely upon two short grounds of appeal in support of the general contention that in exercising the inherent jurisdiction of the High Court to authorise the deprivation of liberty of this child in an unregistered children's home the judge fell into error:
Ground 1: With the coming into force of amendments to the Care, Planning, Placement and Case Review (England) Regulations 2010 on 9 September 2021, a placement of a child under the age of 16 in an unregistered children's home was unlawful for the purposes of domestic law and it was therefore not open to the court to authorise the deprivation of liberty as being in accordance with ECHR, Art 5;
Ground 2: In circumstances where Parliament had legislated, by way of the amended regulation, to prohibit placement of a child under the age of 16 in an unregistered children's home, the court could not authorise a deprivation of liberty within that placement under the inherent jurisdiction without cutting, impermissibly, across the statutory scheme.
The appeal is opposed by Ms Lorraine Cavanagh QC and Mr Sean Spencer for Derby City Council, and acting for Tameside Metropolitan Borough Council as interveners, and by Mr Brendan Roche QC, leading Ms Kathleen Hayter, for the children's guardian. It is also opposed by Mr Jonathan Auburn QC, leading Ruth Kennedy, on behalf of the Secretary of State for Education and Ms Joanne Clement of behalf of OFSTED (which is the statutory registration and regulation body in this context).
The Statutory Scheme
The Statutory Scheme for the placement of children who are looked after by local authorities is contained within CA 1989, Part III in so far as it relates to England. The position in Wales is governed by the Social Services and Well-being (Wales) Act 2014. The current appeal relates entirely to the English provisions and the court is not, therefore, concerned with the parallel Welsh regime.
CA 1989, s 22(3) places on local authorities a duty to safeguard and promote the welfare of any child looked after by a local authority. Further, CA 1989, s 22A places a duty on a local authority to provide a looked after child with accommodation.
CA 1989, s 22C stipulates the “ways in which looked after children are to be accommodated and maintained.” Section 22C provides:
“22C Ways in which looked after children are to be accommodated and maintained
(1) This section applies where a local authority are looking after a child (“C”).
(2) The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to subsection (4)).
(3) A person (“P”) falls within this subsection if—
(a) P is a parent of C;
(b) P is not a parent of C but has parental responsibility for C; or
(c) in a case where C is in the care of the local authority and there was a child arrangements order in force with respect to C immediately before the care order was made, P was a person named in the child arrangements order as a person with whom C was to live.
(4) Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so—
(a) would not be consistent with C's welfare; or
(b) would not be reasonably practicable.
(5) If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.
(6) In subsection (5) “placement” means—
(a) placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;
(b) placement with a local authority foster parent who does not fall within paragraph (a);
(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 Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016; or
(d) subject to section 22D, placement in accordance with other arrangements which comply with any regulations made for the purposes of this section.
(7) In determining the most appropriate placement for C, the local authority...
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