Tameside Metropolitan Borough Council v AM
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 08 September 2021 |
| Neutral Citation | [2021] EWHC 2472 (Fam) |
| Docket Number | Case Nos: MA20P02230, FD21P00578, FD21P00472 and MA21P02001 |
| Year | 2021 |
| Court | Family Division |
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[2021] EWHC 2472 (Fam)
THE HONOURABLE Mr Justice MacDonald
Case Nos: MA20P02230, FD21P00578, FD21P00472 and MA21P02001
Case No. MA21P01965
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Case No. MA21P01965
Ms Lorraine Cavanagh QC and Mr Shaun Spencer (instructed by Tameside MBC) for the Applicant
The First Respondent did not attend and was not represented
Ms Samantha Bowcock QC and Ms Emma Barron-Eaves (instructed by McAlister Family Law) for the Second 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. FD21P00578
Ms Lorraine Cavanagh QC and Mr Shaun Spencer (instructed by Derby City Council) for the Applicant
The First Respondent appeared in person
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. FD21P00472
Ms Elizabeth Isaacs QC and Ms Elizabeth O'Donnell (instructed by London Borough of Lambeth) for the Applicant
Mr John Buck (instructed by All Family Matters) represented the First Respondent
Ms Tara Vindis (instructed by Charles Paulin & Co) for the Second Respondent
Ms Annie Dixon (instructed by Lawrence & Co Solicitors LLP) for the Children's Guardian
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. MA21P02001
Ms Lorraine Cavanagh QC and Mr Shaun Spencer (instructed by Manchester City Council Legal Services) for the Applicant
The First Respondent appeared in person
The Second Respondent appeared in person
Mr Callum Brook (instructed by Temperly Taylor LLP) 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 date: 6 September 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 8 September 2021.
INTRODUCTION
I am concerned with four cases which give rise to the same question of law in the context of the coming into force on 9 September 2021 of the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021, which statutory instrument amends the Care Planning, Placement and Case Review (England) Regulations 2010. The effect of those amendments is, in short, to prohibit the placement of a looked after child under the age of 16 in unregulated accommodation. Within this context, 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. For the reasons set out in this judgment I am satisfied that the answer to that question is yes, subject always to the rigorous application of the President's Guidance of November 2019 entitled Placements in unregistered children's homes in England or unregistered care home services in Wales and the addendum thereto dated December 2020.
At directions hearings held on 1 September 2021, I dealt with seven cases in which the issue articulated above has arisen. I listed four of those cases to be heard together on 6 September 2021 for legal submissions and invited the Secretary of State for Education, the Office for Standards in Education, Children's Services and Skills (hereafter “Ofsted”) and the Children's Commissioner for England and Wales to intervene on the legal question set out above. The Secretary of State for Education and Ofsted accepted the invitation to intervene and I have 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. The court is grateful to the Secretary of State for Education and to Ofsted for accepting the invitation to intervene. The Children's Commissioner for England and Wales declined the invitation to intervene but has requested a copy of the judgment and is following the issues raised by these cases closely.
From the written submissions of the parties and interveners, and during the course of the hearing, there emerged a further question of law with respect to the precise ambit of the local authorities' continuing power to place a looked after child in accommodation following the coming into force of the amended statutory scheme. Specifically, whether the local authority retains the power to lawfully place a child in an unregistered children's home. The four local authorities before the court contend that this question arises from what they submit is the focus given by the Parliamentary materials associated with the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 to semi-independent and independent placements and, hence, to unregulated as opposed to unregistered placements. The Secretary of State proffers that the placement of a child under the age of 16 in an unregistered children's home will not fall within the express powers conferred either by s.22C(6)(c) (as the placement is unregistered) or s.22C(6)(d) (as the subject child is under the age of 16) of the Children Act 1989. The Secretary of State's position is that all children who require care of the sort provided by a children's home should be in a children's home which is registered by Ofsted.
Whilst each of the local authorities and Ofsted invited the court to determine this latter point, the Secretary of State cautioned the court against doing so in circumstances where it did not form part of the question of law raised by the court for determination at this hearing, where the parties had had a very limited time to prepare submissions for the hearing and where reaching a conclusion on the point was not necessary to determine the legal question before the court. I accept the force of the submissions of the Secretary of State in this regard. To the extent that there may now be, in light of the amending regulations, an issue as to the ambit of a local authority's power to place a child in an unregistered children's home, that issue does not lead to a different analysis of the question concerning the ambit of the inherent jurisdiction that is before the court, the Supreme Court having confirmed that the power to place a child and the power to authorise a deprivation of liberty are separate and distinct. Further, the question of whether the local authority otherwise retains the power to lawfully place a child under the age of 16 in an unregistered children's home requires a wider examination of the statutory scheme than simply an examination of the effect of the Care Planning, Placement and Case Review (England) Regulations 2010 as amended, which is the primary focus of this hearing. Finally, the Secretary of State concedes that where it is necessary to place a child in a particular place in order to prevent a breach of that child's Art 2 or Art 3 rights, the local authority has a power, and that power may be a duty, to place the child there.
In the circumstances, whilst I make some observations below that may be relevant to the future question of whether the local authority retains the power to lawfully place a child under the age of 16 in an unregistered children's home, it is not necessary or appropriate for me to offer a definitive answer to that question in this judgment.
Given the complex legal issues raised in the four cases before the court, I reserved judgment for a short period and now proceed to set out my decision and the reasons for it. I begin by recording the court's gratitude to all leading and junior counsel, instructing solicitors and professionals involved in each of the cases before the court for the skill and diligence they have demonstrated in ensuring these matters were made ready, within the span of the very short period between Wednesday 1 September and Monday 6 September 2021, for an urgent hearing on the multifaceted legal question raised by these four sets of proceedings.
BACKGROUND
The background in the four cases with which the court is concerned can be stated relatively shortly for the purposes of determining the legal question currently before this court in each case.
MA21P01965
Tameside Metropolitan Borough Council, represented by Ms Lorraine Cavanagh of Queen's Counsel and Mr Shaun Spencer of...
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