A Mother v Derby City Council

The Court of Appeal dismissed the mother's challenge to MacDonald J's conclusion that the High Court may, under its inherent jurisdiction, authorise the deprivation of liberty of a child under 16 placed in an unregistered children’s home in appropriate cases. The court held that placement in an unregistered children’s home has always been outside the statutory placement categories in Children Act 1989, s 22C(6)(a)–(d), rather than falling within s 22C(6)(d) as "other arrangements", and so the 2021 amendments to the Care Planning, Placement and Case Review (England) Regulations 2010 (notably r 27 and new r 27A) do not create a new prohibition of such placements. The decision in Re T (A Child) [2021] UKSC 35 remains binding: where "imperative considerations of necessity" exist the High Court may exercise its inherent jurisdiction to authorise deprivation of liberty (subject to the safeguards and guidance described by the Supreme Court and the President's Guidance). The court therefore concluded there is no impermissible cutting across the statutory scheme or incompatibility with Article 5 ECHR in appropriate cases.

Background and parties:

• The appeal arose from a group of cases in which MacDonald J authorised deprivation of liberty orders for children under 16 placed in unregistered children’s homes. The appellant mother (A Mother) challenged the lawfulness of such authorisations after amendment of the Care Planning, Placement and Case Review (England) Regulations 2010 by the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 which came into force on 9 September 2021.
• Respondents and interveners included the local authority (Derby City Council), the children’s guardian, the Secretary of State for Education, OFSTED and another local authority (Tameside MBC).

Nature of the application and issues:

• The appellant sought to overturn the High Court finding that the inherent jurisdiction could be used to authorise deprivation of liberty where the placement was in an unregistered children’s home. Two legal issues were central: (i) whether, after the 2021 regulatory amendments, placement of a child under 16 in an unregistered children’s home is unlawful as a matter of domestic law, and (ii) whether the High Court may, without impermissibly cutting across the statutory scheme, authorise deprivation of liberty in such a placement under its inherent jurisdiction.

Procedural posture:

• The appeal is from MacDonald J in the Family Division (FD21P00578). MacDonald J had permitted the mother to appeal.

Court's reasoning and holdings:

The Court of Appeal analysed the Children Act 1989, s 22C(6), the Care Standards Act 2000 definition of "children’s home", the 2010 Regulations (r 27 as previously drafted and the new r 27A), and the President's Practice Guidance on unregistered children’s homes. It concluded that unregistered children’s homes have not, as a matter of ordinary statutory construction, fallen within s 22C(6)(d) as "other arrangements"; instead they have been outside the s 22C placement categories, and any regulation amendments directed at sub‑paragraph (d) therefore do not create a new prohibition concerning unregistered children’s homes.

The court further held that Re T (A Child) [2021] UKSC 35 remains binding: the High Court may, in cases of "imperative considerations of necessity", exercise its inherent jurisdiction to authorise deprivation of liberty for children in placements outside or prohibited by the statutory scheme, provided the Supreme Court's conditions and the President's Guidance (including seeking registration where appropriate) are observed.

Subsidiary findings and context:

• The court noted the distinction between the court's role (authorising deprivation of liberty) and the local authority's role (making placements), emphasised the protective duties in Children Act 1989 ss 22 and 22A and the Article 2/3 ECHR positive obligations, and endorsed the Supreme Court's approach that the court's order constitutes a "lawful order" for Article 5(1)(d) purposes where the inherent jurisdiction is properly exercised.

Appeal dismissed. The Court held that unregistered children’s homes have not been part of s 22C(6)(d) and so the 2021 amendments to the Regulations do not create a new prohibition affecting such placements; in any event the Supreme Court in Re T allows the High Court, in cases of "imperative considerations of necessity" and subject to safeguards and the President's Guidance, to authorise deprivation of liberty in placements outside or prohibited by the statutory scheme without impermissibly cutting across it or breaching Article 5.

Appeal from the High Court of Justice, Family Division (MacDonald J), FD21P00578; MacDonald J delivered his judgment on 8 September 2021 and granted permission to appeal. This Court heard the appeal and dismissed it on 7 December 2021. Relevant prior authority considered: Re T (A Child) [2021] UKSC 35; Derby CC v CK and Others (Compliance with DOL Practice Guidance) [2021] EWHC 2931 (Fam).