T (A Child)

A lack of valid consent is not a jurisdictional precondition to a secure accommodation order or to equivalent authorisation under the High Court’s inherent jurisdiction. The court authorises those caring for the child to restrict liberty when necessary; the order does not itself require or effect that restriction.

Consent may affect whether the arrangements amount to a deprivation of liberty under article 5 of the Convention. That assessment is distinct from the prospective decision whether to authorise secure accommodation. Neither a local authority nor a child can supply the authorisation that Parliament has entrusted to the court. An apparent agreement also does not necessarily prevent compulsory confinement from constituting a deprivation of liberty.

A 15-year-old child subject to a care order was placed in accommodation imposing substantial restrictions on her liberty. Because no suitable approved secure accommodation was available, the local authority sought authorisation under the High Court’s inherent jurisdiction rather than under section 25 of the Children Act 1989.

Mostyn J made authorising orders in January and March 2018. Although the child expressed agreement with the arrangements, he found that her consent was not sufficiently authentic and enduring. She appealed both orders, initially challenging that requirement. By the close of argument, she accepted that absence of valid consent was not a jurisdictional precondition and contended instead that the judge had wrongly exercised his discretion.

The central issues were whether valid consent restricts the court’s power to authorise the equivalent of secure accommodation and whether the orders should nevertheless have been refused because of the child’s stated agreement.

1. The appeals were dismissed. Mostyn J had erred in accepting that absence of valid consent was a jurisdictional precondition. That error did not undermine the orders because there was no basis for finding that he was wrong to authorise the restrictions. The rapid breakdown of the first placement supported his assessment and justified the later order for the replacement placement.

2. Neither section 25 of the Children Act 1989 nor section 119 of the Social Services and Well-being (Wales) Act 2014 makes the child’s consent relevant to the court’s power. Where the statutory criteria are satisfied, the court must authorise secure accommodation. The High Court should adhere as closely as possible to that statutory scheme when using its inherent jurisdiction for equivalent accommodation.

3. An authorising order does not itself deprive the child of liberty or require continuous restraint. It permits the local authority and carers to restrict liberty when necessary. They may relax the regime when this is safe and appropriate. Neither the local authority nor the child can confer an authority that Parliament has reserved to the court.

4. The article 5 inquiry and the authorisation decision have different purposes and temporal perspectives. Whether a person has been deprived of liberty is commonly assessed by reference to present or past circumstances, for which consent may be relevant. An application for secure accommodation authorisation is prospective and asks whether the circumstances justify permitting future restrictions.

5. Apparent consent does not invariably prevent arrangements from constituting a deprivation of liberty. Where confinement is compulsorily imposed by law, agreement cannot necessarily remove its compulsory character or the protection of article 5. Whether deprivation occurs depends on the arrangements actually operated at the relevant time.

6. The decision was confined to placements equivalent to secure accommodation. Where an application seeks only authority to deprive a young person of liberty, agreement with the proposed regime may bear on whether an order is necessary. That issue is fact-specific rather than jurisdictional.

McFarlane P delivered the judgment. Moylan and Peter Jackson LJJ agreed.

1. Court of Appeal (Civil Division): Dismissed the child’s appeals from both authorising orders. It held that absence of valid consent was not a jurisdictional precondition, but that the orders were properly made: [2018] EWCA Civ 2136.
2. Family Court, Mostyn J: On 23 January 2018 authorised the first restrictive placement under the inherent jurisdiction. On 22 March 2018 authorised the replacement placement. He held that the child’s apparent consent lacked the required authentic and enduring quality. No citation is stated.