T (A Child), Re [2021] UKSC 35

A local authority sought to use the High Court's inherent jurisdiction to authorise deprivation of liberty for a vulnerable child in placements that were not approved secure accommodation. The Supreme Court held that the inherent jurisdiction remains available in cases of necessity where no approved secure accommodation exists, despite regulatory gaps and potential criminal offences by unregistered home operators.

Facts

T was a 15-year-old in the care of Caerphilly County Borough Council who had complex needs requiring restrictions on her liberty. No approved secure accommodation was available, so the local authority sought orders under the High Court’s inherent jurisdiction to place T in alternative placements that were neither approved secure children’s homes nor, in one case, registered children’s homes. T argued that her consent to the arrangements rendered court orders unnecessary and that the inherent jurisdiction could not lawfully be used in these circumstances.

The Wider Context

The case arose against a background of severe shortage in provision for children requiring secure accommodation. Lady Black noted the court’s concern about this crisis, quoting Sir James Munby P who had referred to:

the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with.

Issues

The principal issues were: (1) whether section 100(2)(d) of the Children Act 1989 bars the use of the inherent jurisdiction to authorise such placements; (2) whether using the inherent jurisdiction would impermissibly cut across the statutory scheme in section 25 of the Children Act 1989; (3) whether such use would breach Article 5 ECHR as not being in accordance with a procedure prescribed by law; and (4) what relevance the child’s consent has to the court’s decision.

Judgment

Section 100(2)(d)

The Supreme Court rejected the argument that section 100(2)(d) prohibited the use of the inherent jurisdiction. Lady Black held that the section was designed to protect families from local authority intervention except through statutory routes, not to prevent the inherent jurisdiction filling gaps where statutory orders were unavailable. The court emphasised:

courts should be slow to hold that an inherent power has been abrogated or restricted by Parliament, and should only do so where it is clear that Parliament so intended.

The Statutory Scheme

The Court held that the inherent jurisdiction did not impermissibly cut across section 25. Lady Black accepted that ‘secure accommodation’ within section 25 should be narrowly interpreted to mean accommodation designed for, or having as its primary purpose, the restriction of liberty. Where placements fell outside this definition, or where no compliant accommodation was available, the inherent jurisdiction could fill the gap.

Article 5 ECHR

The Court found no breach of Article 5. The law relating to the inherent jurisdiction was sufficiently accessible and foreseeable, and appropriate procedural safeguards existed. Lady Black stated:

The law as to the exercise of the inherent jurisdiction in this area is, in my view, sufficiently accessible and foreseeable with advice.

The Question of Consent

On consent, the Court held that while a child’s views are important, the presence of consent does not preclude the court from making an order where circumstances warrant it. Given the judge’s finding that T’s consent was not authentic and enduring, there was no basis to disturb the orders made.

Unregistered Children’s Homes

Lord Stephens emphasised that the inherent jurisdiction remains available even where placement in an unregistered home might involve commission of a criminal offence by those operating it. He stated:

The central focus of this aspect of the inherent jurisdiction is on the welfare and safety of children rather than on the potential commission of a criminal offence under section 11 of the Care Standards Act 2000 by others.

However, such placements should only be authorised where there are ‘imperative considerations of necessity’ and strict compliance with the President’s Practice Guidance.

Implications

The judgment confirms that the High Court’s inherent jurisdiction remains a vital safety net for protecting vulnerable children when statutory provisions are inadequate or unavailable. However, all members of the Court expressed deep concern about the systemic failure to provide appropriate accommodation. Lady Black concluded:

It is fortunate that the inherent jurisdiction is there to fill the gaps in the present provision, but it cannot be doubted that it is only an imperfect stop gap, and not a long term solution.

The decision establishes important procedural requirements for applications seeking to place children in unregistered homes, requiring strict compliance with Presidential Guidance and ongoing judicial monitoring of registration applications.

Verdict: Appeal dismissed. The Supreme Court held that the High Court’s inherent jurisdiction may be used to authorise deprivation of a child’s liberty in placements outside the approved secure accommodation regime where imperative considerations of necessity exist and no alternative is available.

Source: T (A Child), Re [2021] UKSC 35