A County Council v B

The High Court may use its inherent jurisdiction to authorise the placement of a ward of court in secure accommodation, including where the statutory scheme under the Children Act 1989 would otherwise apply but the child is not looked after by a local authority. The jurisdiction must nevertheless be exercised compatibly with the safeguards and limitations imposed by the statutory scheme, including the restrictions in section 25. Any placement involving deprivation of liberty must also satisfy Articles 5 and 8 of the European Convention, including legality, necessity and proportionality. The existence of jurisdiction does not determine whether detention is justified on the individual facts.

A local authority applied under the inherent jurisdiction for orders concerning a 17-year-old who was considered vulnerable and at risk of self-harm, drug and alcohol misuse, and other harm. Earlier orders had made her a ward of court and authorised placement in secure accommodation. At an urgent hearing, the court separated the jurisdictional question from the merits. The central issue was whether the High Court could direct secure accommodation under its inherent jurisdiction where the child was not being looked after by the local authority for the purposes of section 25 of the Children Act 1989.

1. Jurisdiction. The court held that the inherent jurisdiction of the High Court permitted a ward of court to be placed in secure accommodation. The conclusion was reached on the basis of the reasoning in Re PS (An Adult) [2007] EWHC 623 (Fam), which recognised the power to direct placement and authorise detention in a specified institution.
2. Relationship with the statutory scheme. Section 100 of the Children Act 1989 restricted the use of the inherent jurisdiction in specified circumstances. The court accepted that, where the statutory criteria in section 25 were otherwise satisfied, the inherent jurisdiction could operate despite the absence of the requirement that the child be looked after by the local authority. The court had to apply the principles, safeguards and duration limits underlying section 25. Orders under the inherent jurisdiction could not last longer than the period permitted by that section.
3. Statutory accommodation provisions. The court considered sections 20, 22 and 25, but the local authority accepted that the child was not being accommodated under section 20(3) when proceedings began. The court therefore did not decide whether those provisions might apply in other circumstances.
4. Convention requirements. Secure accommodation engaged Article 5 because it involved a deprivation of liberty. Under Article 8, interference had to be in accordance with the law, necessary for the protection of the child’s rights and freedoms, and proportionate. The individual merits and proportionality of continued placement were left for a later hearing.
5. Order. An interim order was made for the child to remain in the secure accommodation pending further consideration. At counsel’s request, the word “detain” was removed from the judgment so that the order referred to placement in secure accommodation and did not imply that the unit’s ordinary discretion concerning activities outside it was removed.

First-instance decision. No prior or appellate decision in the same proceedings is stated.