J, Re

A child’s consent, or parental consent, cannot authorise a deprivation of liberty where the legal requirements for valid consent are absent. The court must identify the objective confinement, lack of valid consent and state responsibility. It must then decide whether authorisation is in the child’s best interests and is necessary and proportionate to protect against significant harm. The inherent jurisdiction may authorise deprivation of liberty where the statutory secure-accommodation route is unavailable, provided the statutory gateway is met. Unregistered placements require particular scrutiny and should be authorised only where absolutely necessary. The child should have an opportunity to express views before any extended authorisation is granted.

The local authority applied for an interim care order and permission to invoke the High Court’s inherent jurisdiction in respect of a 16½-year-old child who repeatedly absented himself, was involved in drug-related criminal activity and was exposed to serious gang violence. No registered secure accommodation was available. The proposed placement involved extensive restrictions, including constant supervision, limits on communication and the ability to leave, and possible restraint.

A Circuit Judge had granted permission under section 100(4) of the Children Act 1989. The High Court had to determine whether the statutory gateway was satisfied, whether the proposed arrangements amounted to a deprivation of liberty, and whether the restrictions were necessary and proportionate.

1. The court found that the proposed restrictions constituted a deprivation of liberty. The three components identified in Surrey County Council v P and Cheshire West and Chester Council v P [2014] UKSC 19, namely confinement, lack of valid consent and state responsibility, were satisfied.
2. Under Re D (A Child) [2019] UKSC 42, the mother could not provide valid consent to the deprivation of liberty of a 16- or 17-year-old. Judicial authorisation was therefore required.
3. The statutory gateway in section 100(4) of the Children Act 1989 was satisfied. There was reasonable cause to believe that the child would suffer significant harm without intervention, and the protection sought could not be achieved through another order because no registered secure unit was available.
4. The court had power under the inherent jurisdiction to authorise detention in a suitable placement, consistently with Re A-F (Children) [2018] EWHC 138 (Fam) and Re T (A Child) (ALC Intervening) [2018] EWCA Civ 2136. The child’s welfare was paramount. The proposed plan was necessary and proportionate because less restrictive arrangements were likely to fail.
5. The President’s November 2019 guidance required clear information about registration, the provider’s suitability and interim safeguarding arrangements. An unregistered placement should be authorised only when absolutely necessary.
6. An interim care order was made. Deprivation of liberty was authorised for eight days, rather than the six weeks sought, so that the child could be heard before any longer authorisation was considered.

On 21 August 2020, a Circuit Judge granted permission under section 100(4) of the Children Act 1989 for an application to invoke the High Court’s inherent jurisdiction. The High Court then granted an interim care order and authorised deprivation of liberty for eight days.