TEENAGERS AND DEPRIVATION OF LIBERTY – BUSINESS AS USUAL
In recent years there has been an increasingly intensified spotlight on the shortage of specialist accommodation for children who require special limitations on their liberty to keep them safe. Rehana Begum takes a look at an important case for professionals working in this area to consider.
Re T (A Child) (Appellant) [2021] UKSC on appeal from: [2018] EWCA Civ 2136
In recent years there has been an increasingly intensified spotlight on the shortage of specialist accommodation for children who require special limitations on their liberty to keep them safe. These are children who, for example, need to be placed in highly specialised secure children's homes but for whom no placements can be found; or children whose needs require them to be placed in specialised (not secure) care settings but who also need to have limitations placed on their liberty.
The shortage has forced Local Authorities to turn to the High Court and seek orders authorising the limitations on liberty under the High Court's Inherent Jurisdiction. This matter has recently been brought to the attention of the Supreme Court in Re T and is an important case to consider for professionals working in this area.
Background Facts
Court proceedings were issued by Caerphilly County Borough Council ("CCBC") in July 2017 in respect of T, a 15 year old in the care of the Local Authority pursuant to a Care Order. The proposed placement and care regime for T constituted a deprivation of her liberty because it was not a placement in a registered children's home or approved for use as secure accommodation. Had it been a placement in a registered children's home or approved for use as secure accommodation, associated regulations would have permitted certain restrictions on her liberty (and therefore no authorisation from the court would have been required).
The Local Authority therefore applied to the High Court for authorisation to deprive her of her liberty and that was granted.
The questions on appeal
The appeal was brought on behalf of T herself and raised 2 main issues for the court's determination: (i) was it a permissible use of the inherent jurisdiction to make an order authorising the Local Authority to deprive a child of his/her liberty; and (ii) if the High Court can be used in this way, what is the relevance of the child's consent to the proposed care regime.
The first point was not pursued as an argument in the lower courts. T argued that the use of the inherent jurisdiction in this was not permissible for 3 reasons: (i) s100(2)(d) of the Children Act bars the use of the inherent jurisdiction in this way, (ii) the inherent jurisdiction is not to be used to cut across the Children Act, and (iii) this would be contrary to Article 5 of the ECHR.
The appeal was dismissed unanimously. The Supreme Court held that the use of the inherent jurisdiction to authorise the deprivation of liberty in cases like this is permissible, but grave concern expressed about its use to fill a gap in the child care system created by lack of resources.
Reasoning behind the judgment
(i) use of the inherent jurisdiction to authorise deprivation of liberty.
Section 25 of the CA 1989 and section 119 of the Social Services and Well-Being (Wales) Act 2014 provide authority for placing, in certain circumstances, a child who is being looked after by the local authority and who is at risk of harm, in accommodation provided for the purpose of restricting liberty i.e. secure accommodation. This "secure accommodation" can only be used as such if it has been approved for that purpose by the Secretary of State for Education (in England) or by the Welsh Ministers (in Wales); and children's homes must be registered with Ofsted (in England) and with Care Inspectorate Wales (in Wales). It is an offence to manage a care home without registration.
The court decided that section 25 was not a bar to obtaining a declaration from the High Court for the purposes of keeping a child safe from significant harm (the prerequisite that needs to be satisfied before the High Court's inherent jurisdiction can be used for this purpose). The court decided that if the Local Authority cannot apply for a secure accommodation order under section 25 because there is no secure placement available, the inherent jurisdiction can be used to fill that gap. Section 100 CA 1989 allows the inherent jurisdiction to be used to protect children if used to protect children and the desired outcome (secure placement) cannot be achieved using any other Statutory scheme. Thus the Local Authority can place a child in an unregistered children's home and deprive him/her/them of liberty, if there is no alternative and if grave harm was likely to befall the child if the court did not act. The safeguards devised by the court, which mirror the procedural protections that apply to section 25 applications also means that the use of the inherent jurisdiction would not breach Article 5 ECHR. Nevertheless, the court emphasised that this is a temporary solution to the problem created by the lack of secure accommodation. The permanent solution is provision of more secure accommodation.
(ii) relevance of the child's consent.
It was argued on behalf of T that orders were not necessary as she was consenting to the restrictions on her liberty and that her consent should be determinative of the issue given her age, maturity and understanding. However, the court noted that an apparently free decision by a child could be quickly changed; as illustrated in T's case where her behaviour in the first placement confirmed the Judge's view that the consent was not genuine. Therefore, it could not be said that the Judge was wrong to authorise a deprivation of her liberty. The court did however acknowledge that any consent by a child will form an important part of the circumstances that the court must weigh into the balance when considering an application for authorisation.
Effectively the decision confirms that it is business as usual and is likely to be so unless and until more secure accommodation is provided by Government.
The problem of limited beds in secure accommodation will become more acute with the impact of the forthcoming (on 09/09/21) Care Planning, Placement & Case Review (England) (Amendment) Regulations 2021 which will prohibit the placement of children under the age of 16 in unregulated placements even subject to the inherent jurisdiction. The rationale behind that provision is to ensure that children under the age of 16 are placed (more appropriately) in foster homes or specialist and regulated children's homes. Local Authorities will be permitted a grace period of 6 months to move children under 16 from these placements.
Rehana Begum
Rehana Begum is head of the Family Department at 18 St John Street Chambers. If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.