Northumberland County Council v S (Mother) & Ors

Section 100 of the Children Act 1989 provides an exceptional, residual route for cases involving children subject to care orders where the statutory framework cannot provide the required protection. The High Court may authorise placement outside the jurisdiction, including arrangements involving deprivation of liberty, where the statutory conditions are met and there is reasonable cause to believe that the child is likely to suffer significant harm if the jurisdiction is not exercised. The court must consider the child’s wishes, family relationships, placement history, the availability of suitable care, and whether the arrangement is necessary and proportionate. A proposed reliance on Schedule 2 paragraph 19 requires particular caution where the placement is temporary and the child’s consent is withdrawn.

The local authority sought permission to invoke the inherent jurisdiction under section 100 of the Children Act 1989 in respect of a 14-year-old child subject to a full care order. His placement had broken down, and the only available alternative was a residential school in Scotland. The child initially consented to the placement for two months but subsequently opposed remaining there, absconded and damaged property.

The authority sought authorisation for the placement, involving deprivation of liberty, because it could not achieve that result through the statutory scheme. The central issues were whether the High Court had jurisdiction under section 100 and whether exercising it was justified by the risk of significant harm.

1. Jurisdiction. Section 100 of the Children Act 1989 is reserved for a small minority of cases which cannot otherwise be dealt with under Parts II and IV. Subject to section 100(4)(b), the court had jurisdiction to authorise the proposed placement and associated deprivation of liberty, despite the child being subject to a care order.
2. Statutory alternative. It was unnecessary to decide whether Schedule 2 paragraph 19 had been the correct basis for the earlier order. The wording requiring that the child “has consented” suggested a once-and-for-all consent and appeared more apt to a permanent arrangement to live outside England and Wales than to a temporary placement. The judge stated that he would have approached reliance on that provision with considerably greater circumspection. The decision in Re X and Y [2016] 3 WLR 1718 did not resolve the issue.
3. Significant harm. There was ample reason to believe that, without exercising the inherent jurisdiction, the child was likely to suffer significant harm. His history showed serious difficulties in family, foster, residential and educational placements. Although he appeared to meet the criteria in section 25, the authority did not seek a section 25 order because the proposed placement was not secure accommodation and was in Scotland.
4. Welfare and proportionality. The court gave weight to the child’s wishes, his opposition to being far from home, his relationship with his mother and family, the mother’s opposition, the rarity of suitable placements, and the authority’s commitment to regular review and contact. The placement was authorised as a potentially temporary arrangement, with an expectation of regular family contact and possible rehabilitation closer to home.
5. The authority was given permission to invoke the inherent jurisdiction, and the placement at Bracken School was authorised notwithstanding the child’s opposition. The authority was also required to apply to the Inner House of the Court of Session for corresponding relief in Scotland.