A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction)

The High Court cannot use its inherent jurisdiction to authorise a local authority to place a child in secure accommodation where the child is not “looked after” under the Children Act 1989 and a person with parental responsibility objects to the accommodation. Such an order would require the child to be accommodated by or on behalf of the local authority, contrary to section 100(2)(b). The court’s inherent jurisdiction cannot be used to circumvent the statutory scheme or fill a supposed gap where the statutory conditions for accommodation are not met. Convention duties, including the positive obligation to protect life under article 2, must be discharged through measures within the court’s lawful powers.

A local authority applied under the High Court’s inherent jurisdiction for authority to secure the placement of a 17-year-old boy, KS, who was not subject to a care order and whose mother opposed his accommodation. The application followed interim orders authorising his removal, restraint and detention in a non-secure placement pending identification of a secure placement. The local authority relied on grave risks associated with alleged gang activity, firearms, drug dealing and possible reprisals. The central issue was whether the inherent jurisdiction could provide a secure-accommodation remedy where section 25 of the Children Act 1989 did not apply because KS was not a looked-after child.

1. Application dismissed. The interim orders made by HHJ Sharpe were discharged. There was no order for costs, save that the publicly funded parties’ costs were to be assessed.
2. Section 25 of the Children Act 1989 applies only to a child being looked after by a local authority. A child is looked after only if in the authority’s care or provided with accommodation by it. KS was neither. He could not be made subject to a care order because of his age, and his mother’s objection prevented accommodation under section 20(7).
3. The order sought would not merely authorise an existing lawful placement. It would authorise KS’s removal from his mother’s care without her consent and his accommodation by the local authority. That result was prohibited by section 100(2)(b) of the 1989 Act.
4. The prohibition applies both to wardship and to the residual inherent jurisdiction. The authorities establish that the High Court cannot use its inherent jurisdiction to authorise a local authority to accommodate a child where the authority otherwise lacks power to do so under the statutory scheme. Re E (A Child) [2012] EWCA Civ 1773 and Re M (Jurisdiction: Wardship) [2016] EWCA Civ 937 were followed.
5. The seriousness of the risks did not alter the result. Although article 2 of the ECHR imposes a positive obligation to protect life, that obligation requires measures within the scope of the public authority’s lawful power. It could not enlarge the court’s inherent jurisdiction.
6. The court did not need to decide whether a statutory lacuna existed or whether the application impermissibly cut across the statutory scheme. The decision in Re B (Secure Accommodation: Inherent Jurisdiction)(No 1) [2013] EWHC 4654 (Fam) was treated with considerable caution and its correctness was doubted.