A Local Authority v SW & Ors

When the High Court makes an inherent-jurisdiction order which mirrors a statutory secure accommodation order, it should conform as far as practicable to the safeguards in section 25 of the Children Act 1989. This includes applying the statutory criteria and limiting the initial order and renewals to comparable periods. The alternative procedure must also comply with article 5 of the Convention. The court must therefore be satisfied that there is objective confinement, a lack of valid consent and state responsibility. Consent must be authentic and likely to endure. A merely transient expression of agreement does not prevent a deprivation of liberty finding. The court may authorise placement in an otherwise unauthorised institution where the statutory criteria and the child’s best interests justify the order.

The local authority applied for authority to keep a child in a secure placement where no suitable registered secure accommodation was available. The proposed institution was not yet registered with Ofsted, so the application relied on the High Court’s inherent jurisdiction and sought a mirror order reflecting the statutory scheme under section 25 of the Children Act 1989.

The child actively consented to the placement. The central issue was whether that consent was legally valid for article 5 purposes, and whether the court could nevertheless make an order authorising the placement and declaring a deprivation of liberty.

1. The court made the requested inherent-jurisdiction order. It authorised the child’s placement in the institution and incorporated a deprivation of liberty declaration.

2. Parliament had enacted a detailed scheme in section 25 of the Children Act 1989, including prescribed criteria, maximum periods, de novo consideration on renewal and supervisory reviews. An inherent-jurisdiction mirror order should conform to that scheme as far as practicable, to avoid judicially creating a materially less protective alternative regime. The initial order should ordinarily be limited to three months and renewals to no more than six months.

3. The court should initially and on each renewal seek to satisfy itself that the criteria in section 25(1) are met. The inherent jurisdiction is not confined absolutely to the statutory wording, but substantial departure from the statutory safeguards would be inappropriate.

4. For the alternative procedure, the three components identified in Storck v Germany [2005] 43 EHRR 96, and approved in Cheshire West [2014] UKSC 19 at para 37, had to be present: objective confinement, lack of valid consent and attribution of responsibility to the state.

5. Following A local authority v D [2016] EWHC 3473 (Fam), consent required more than the child’s words of agreement. It had to be authentic and enduring. The court had to assess whether it was likely to continue in the short to medium term. Consent which was merely evanescent was not valid consent for article 5 purposes.

6. The child’s consent in this case did not meet that standard. The history demonstrated that it was not sufficiently authentic and enduring. The court was satisfied that both alternative limbs of section 25(1) were met: there was a history and likelihood of absconding with a risk of significant harm, and a risk of self-injury in other accommodation. The order was also in the child’s best interests.