Re T (A Child)
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] UKSC 35 |
| Year | 2021 |
| Court | Supreme Court |
2020 Oct 28, 29; 2021 July 30
Children - Inherent jurisdiction - Secure accommodation - Local authority wishing to place child in unapproved secure children’s home outside statutory scheme - Whether authorisation of such placement permissible exercise of inherent jurisdiction -
A local authority in Wales wished to place a child whom it was looking after in secure accommodation, but since there were no places available in approved secure children’s homes it was unable to obtain an order under section 25 of the Children Act 1989F1 or section 119 of the Social Services and Well-being (Wales) Act 2014F2 authorising such a placement. Accordingly it applied for an order under the inherent jurisdiction of the High Court authorising it to accommodate the child in a placement in England which was not a registered children’s home or approved for use as secure accommodation, in circumstances which involved her being deprived of her liberty. The judge granted the order sought. After that placement broke down, the judge amended the order so as to authorise a placement in a children’s home in England which was registered but which was not approved for use as secure accommodation. It was envisaged that that placement would also involve the child being deprived of her liberty. The child’s appeal against the authorisation of both placements was dismissed by the Court of Appeal. The child appealed to the Supreme Court, contending that it was not a permissible exercise of the High Court’s inherent jurisdiction to make an order authorising the local authority to deprive her of her liberty. In particular she argued that the use of the inherent jurisdiction in such circumstances was barred by section 100(2)(d) of the 1989 Act and would be contrary to article 5 of the Convention for the Protection of Human Rights and Fundamental FreedomsF3.
On the appeal—
Held, dismissing the appeal, that the inherent jurisdiction of the High Court was a means by which to provide protection for children whose welfare required it; that, although section 100(2)(d) of the Children Act 1989 prohibited the use of the inherent jurisdiction to confer on the local authority any degree of parental responsibility which it did not already have, that did not prevent recourse to the inherent jurisdiction in a case where the local authority already had parental responsibility by virtue of a care order; that, where there was absolutely no alternative and the child, or someone else, was likely to come to grave harm if the court did not act, the inherent jurisdiction could be used to authorise a local authority to deprive a child of their liberty, notwithstanding that the placement would be in an unregistered children’s home; that “likely”, in that context, meant a real possibility, that could not sensibly be ignored, having regard to the nature and gravity of the feared harm in the particular case; and that (per Lord Lloyd-Jones, Lord Hamblen, Lord Stephens JJSC and Lady Black) the use of the inherent jurisdiction in such circumstances did not fall foul of article 5 of the Human Rights Convention, given the safeguards which the courts had devised, in particular by mirroring the procedural protections applicable in an application under section 25 of the 1989 Act, and might also be justified, and required, where the positive operational duties to take steps to protect life or prevent inhuman or degrading treatment under articles 2 and 3 of the Convention were engaged (post, paras 1, 65–67, 113–121, 141, 145, 150–155, 163, 164, 170, 174–178, 179, 189, 197–198).
Per curiam. (i) It is important, for the protection of a child, that the court is involved in authorising a deprivation of liberty, whether under section 25 of the Children Act 1989, section 119 of the Social Services and Well-being (Wales) Act 2014 or under the inherent jurisdiction. Although an apparently balanced and free decision made by a child may be quickly revised and/or reversed, any consent on the part of the child will form part of the circumstances that the court has to evaluate in considering an application for an order authorising a local authority to restrict a child’s liberty (post, paras 161–162, 164, 179).
(ii) An order made under the inherent jurisdiction authorising a deprivation of liberty where the placement is in an unregistered children’s home does not authorise the commission of a criminal offence. If a prosecution is brought against the provider of the home under section 11 of the Care Standards Act 2000, it is a matter for the criminal courts to determine whether an offence has been committed (post, paras 1, 168, 183).
The following cases are referred to in the judgments:
A (Children) (Care Proceedings: Deprivation of Liberty)
A (Children) (Conjoined Twins: Surgical Separation), In re [
Al Rawi v Security Service
Attorney General v De Keyser’s Royal Hotel Ltd [
B (A Child), In re
Birmingham City Council v D
C (Detention: Medical Treatment), In re [
DG v Ireland (Application No 39474/98) (
F (Mental Patient: Sterilisation), In re [
Gillick v West Norfolk and Wisbech Area Health Authority [
H (Minors) (Sexual Abuse: Standard of Proof), In re [
HL v United Kingdom (Application No 45508/99) (
K (A Child) (Secure Accommodation Order: Right to Liberty), In re [
Koniarska v United Kingdom (Application No 33670/96) (
Kurt v Austria (Application No 62903/15) (
L (An Infant), In re [
Lancashire County Council v G
Lancashire County Council v G
Osman v United Kingdom (Application No 23452/94) (
Privacy International v Secretary of State for Foreign and Commonwealth Affairs
R-J (Minors) (Fostering: Person Disqualified), In re [
Rabone v Pennine Care NHS Trust
SS (Secure Accommodation Order), In re
Storck v Germany (Application No 61603/00) (
Wellesley v Duke of Beaufort (
X (A Child), In re (No 3)
Z v United Kingdom (Application No 29392/95) (
The following additional cases were cited in argument:
A City Council v LS
A Metropolitan Borough Council v DB [
AB (A Child) (Deprivation of Liberty: Consent), In re
A-F (Children), In re (No 2)
C (A Child by his Guardian), In re (No 3)
C (Children) (Child in Care: Choice of Forename), In re
Cheshire West and Chester Council v P
D (A Child) (Deprivation of Liberty), In re
DL v Bulgaria (Application No 7472/14) (unreported) 19 May 2016,
Dorset County Council v E
Health Service Executive of Ireland v Z
M v Ukraine (Application No 2452/04) (unreported) 19 April 2012,
M (A Minor) (Secure Accommodation Order), In re [
PS (Incapacitated or Vulnerable Adult), In re
R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [
Steel v United Kingdom (Application No 24838/94) (
Sunday Times v United Kingdom (Application No 6538/74) (
W (A Minor) (Medical Treatment: Court’s Jurisdiction), In re [
X (A Child) (Jurisdiction: Secure Accommodation), In re
Z (A Child) (Deprivation of Liberty Safeguards: Lack of Secure Placement), In re
Z County Council v M
APPEAL from the Court of Appeal
By an application notice the local authority applied under the inherent jurisdiction for an order authorising the placement of T, a child subject to a full care order under the care of the local authority, in an appropriate secure placement where her liberty might be restricted, there being...
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