FD, R (On the Application Of) v X Metropolitan Borough Council

Where a child is held under a valid authorisation under section 25 of the Children Act 1989, an urgent application for release by interim mandatory injunction is subject to the American Cyanamid balance of convenience, modified for the public-law context. The child’s liberty is a weighty factor, but release will not be ordered where there is no suitable alternative placement or care plan. Public-law errors in the decision-making process would ordinarily lead to quashing and reconsideration, rather than automatic release. The form of relief sought must therefore correspond to the likely final remedy and the practical consequences of the order.

FD, aged 14, was subject to a care order and held in secure accommodation under a valid section 25 authorisation. A secure review panel concluded that the statutory criteria no longer applied, but the local authority’s Director decided that FD should remain in secure accommodation while further information and an alternative placement were considered.

FD sought urgent judicial review relief, including an interim mandatory injunction requiring her immediate release. The Council argued that no final justiciable decision had been made and that the claim was premature. The central issues were the proper approach to interim relief, the effect of the valid authorisation, and whether release was an appropriate remedy for the alleged public-law errors.

1. Interim injunction principles. The application was refused. The applicable approach was that in American Cyanamid Co v Ethicon Ltd [1975] A.C. 396, as modified for public-law proceedings. The fact that the case concerned liberty and an alleged breach of article 5 was a special factor carrying substantial weight in the balance.
2. Secure accommodation authorisation. FD was detained under a lawful section 25 authorisation. The review regulations made the panel’s view a recommendation to the local authority rather than the final decision. The statutory framework did not therefore require immediate release merely because the panel concluded that the criteria no longer applied.
3. Balance of convenience. The balance favoured continued detention pending a suitable alternative placement. There was presently nowhere suitable for FD to go and no proper care plan for release. An order requiring the Council to formulate or pursue an alternative-placement plan might have raised a different question, but immediate release was inappropriate.
4. Public-law remedy. The alleged errors concerned the decision-making process. Even if established at a final hearing, they would most likely result in quashing and remittal to the Director for reconsideration, not an order requiring release. It was therefore inappropriate to grant at an interim hearing substantially the final relief which might not be available after full consideration.
5. Capacity. The judge expressed serious concern whether FD could conduct the proceedings without a litigation friend, given the nature of the order sought and her history of self-harm and absconding, but reached no concluded view and permitted the proceedings to continue temporarily without one.