T (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Sir Andrew McFarlane,Lord Justice Moylan |
| Judgment Date | 04 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2136 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2018/0754 + 0349/FAFMF |
| Date | 04 October 2018 |
[2018] EWCA Civ 2136
Sir Andrew McFarlane
(PRESIDENT OF THE FAMILY DIVISION)
Lord Justice Moylan
and
Lord Justice Peter Jackson
Case No: B4/2018/0754 + 0349/FAFMF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY COURT
MR JUSTICE MOSTYN
CF17C00940
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Twomey QC and Alex Laing (instructed by Duncan Lewis Solicitors) for the Appellant
Amanda Weston QC and Amanda Meusz (instructed by Caerphilly County Borough Council) for the 1st Respondent
Ruth Henke QC and Harriet Edmondson (instructed by Cameron Jones Hussell and Howe Solicitors) for CAFCASS Cymru
Deirdre Fottrell QC, Siobhan Kelly, Richard LittleandSimon Rowbothamfor the Association of Lawyers for Children (Instructed by Royd Withy King)
Hearing dates: Tuesday 10 & Wednesday 11 July 2018
Sir Andrew McFarlane (President of the Family Division):
This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act, 1989, s 25 (CA 1989).
Official figures published by the Department for Education 1 show that, as at 31 March 2018, there were some 255 places in secure children's homes in England and Wales. These places are taken up either by young people sent there through the criminal justice system or under CA 1989, s 25 secure accommodation orders. As will be explained more fully below, a child who is being looked after by a local authority in England or Wales may only be placed in secure accommodation in a children's home if that home has been approved for such use either by the Secretary of State in England or the Welsh Government in Wales. This court understands that, in recent years, there has been a growing disparity between the number of approved secure children's homes and the greater number of young people who require secure accommodation. As the statutory scheme permits of no exceptions in this regard, where an appropriate secure placement is on offer in a unit which is either not a children's home, or is a children's home that has not been approved for secure accommodation, the relevant local authority has sought approval by an application under the inherent jurisdiction asking for the court's permission to restrict the liberty of the young person concerned under the terms of the regime of the particular unit on offer.
Despite the best efforts of CAFCASS Cymru (this being a case concerning a Welsh young person), it has not been possible to obtain firm data as to the apparent disparity between the demand for secure accommodation places and the limited number available, nor of the number of applications under the inherent jurisdiction in England and Wales to restrict the liberty of a young person outside the statutory scheme. The data published by the Department for Education referred to in paragraph 2 simply measures the occupancy rate within the limited number of approved secure places without attempting to record the level of demand.
This court has been told by counsel, on a broad anecdotal basis, that each local authority may, on average, make an application for a restricted liberty declaration under the inherent jurisdiction in one case each year. If that is so then, across England and Wales, the total number of such applications would be in the region of 150 per year. The understanding, again anecdotal, of judges hearing these cases is that that figure is probably a very substantial under-estimate; for example, in one week recently a medium-size court outside London heard five such applications. Again, by way of example, Mr Justice Holman described the situation in one week in the High Court in 2017 with a tone of wholly appropriate concern in A Local Authority v AT and FE [2017] EWHC 2458 (Fam):
“5. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction. This week I have been sitting here at
the Royal Courts of Justice as the applications judge. This case is about the sixth case this week in which I have been asked to exercise the inherent jurisdiction of the High Court to authorise the deprivation of liberty of a child in similar circumstances. There are two yet further similar cases listed before me today.6. Quite frankly, the High Court sitting here at the Royal Courts of Justice is not an appropriate resource for orders of this kind, and I personally have been almost drowned out by these applications this week. Further, although I have no time properly to consider this today, I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.”
It is plainly a matter for concern that so many applications are being made to place children in secure accommodation outside the statutory scheme laid down by Parliament. The concern is not so much because of the pressure that this places on the court system, or the fact that local authorities have to engage in a more costly court process; the concern is that young people are being placed in units which, by definition, have not been approved as secure placements by the Secretary of State when that approval has been stipulated as a pre-condition by Parliament.
In the present appeal, no party takes issue with the use of the inherent jurisdiction to meet the needs of the group of vulnerable young people, who would otherwise be the subject of a CA 1989, s 25 secure accommodation order, but who fall outside the statutory scheme solely as a result of the lack of available approved secure children's homes. Indeed, as a primary justification for the continued use of the inherent jurisdiction with respect to children in modern times is to provide protection for young people when their welfare demands it, it would be difficult to argue against the assumption of jurisdiction in such cases. The issue in the present appeal, therefore, relates to the manner in which that jurisdiction is to be exercised and, in particular, the approach to be taken as a matter of law and in relation to the exercise of the court's discretion when, as here, the young person is Gillick competent and consents to the proposed care regime, notwithstanding that it significantly restricts her liberty to a degree that would otherwise require authorisation by a CA 1989, s 25 order if the placement was in a unit registered as a secure children's home. The young person at the centre of the case is subject to a full care order. Her 16 th birthday was in May 2018 and she was therefore still aged 15 years at the time of the two first instance hearings that are the subject of appeal.
The matter came before Mr Justice Mostyn on 23 January 2018 and, following a change of placement, on 22 March 2018. Despite, in my view, well-placed misgivings to the contrary, the judge was persuaded that, when considering an application to authorise restriction of liberty under the inherent jurisdiction, the court had to be satisfied that the young person was not consenting to the placement.
Having reviewed the available evidence, and whilst accepting that, on the day in court, the young person was fully consenting to the restrictive arrangements, Mostyn J held that any such consent “must be an authentic consent, and must be an enduring consent” meaning that the court was required to evaluate “whether the consent is going to endure in the short to medium term, or whether it is merely evanescent consent.” On the facts the judge held that the young person's stated consent fell short of establishing such an “enduring” quality. He therefore, having considered the other circumstances of the case, granted the declaration sought by the local authority.
The focus of the Appellant's pleaded appeal is to challenge the need for an “enduring” quality of consent, as identified by the judge. However, as I shall describe, during the appeal hearing this court has questioned the underlying assumption that it is necessary, as a matter of jurisdiction and as a pre-condition, for the court to establish a lack of valid consent before it may consider making a declaration authorising restriction of liberty in this cohort of cases which would otherwise fall to be dealt with within the CA 1989, s 25 statutory scheme.
The Statutory Scheme
In order to understand and inform consideration of the role of the inherent jurisdiction in these cases, it is necessary to set out the basic structure of the statutory scheme that would otherwise apply if sufficient secure places were available.
Children Act 1989, s 25 which is headed “Use of Accommodation for Restricting Liberty” states:
“(1) Subject to the following provisions of this section, a child who is being looked after by a local authority in England or Wales may not be placed, and, if placed, may not be kept, in accommodation in England or Scotland provided for the purpose of restricting liberty (“secure accommodation”) unless it appears—
(a) that—
(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii) if he absconds, he is likely to suffer significant harm; or
(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.
(2) The Secretary of State may by regulations—
(a) specify a maximum period—
(i) beyond which a child may...
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