A Mother v Derby City Council

A looked-after child’s placement in an unregistered children’s home falls outside the statutory placement scheme in Children Act 1989, section 22C. It is not an “other arrangement” under section 22C(6)(d), so the 2021 amendments governing those arrangements did not change its legal status.

The High Court may nevertheless use its inherent jurisdiction to authorise a necessary deprivation of liberty in such a placement. That jurisdiction is confined to cases where imperative conditions of necessity exist and no alternative placement is available. The resulting order is lawful for article 5 purposes and does not cut across the statutory scheme, because the court authorises the restrictions but does not itself place the child.

Four local authorities applied to the High Court for authorisation under its inherent jurisdiction to deprive four children under 16 of their liberty. The proposed placements were in unregistered children’s homes. MacDonald J held that the jurisdiction remained available after amendments to the Care Planning, Placement and Case Review (England) Regulations 2010 took effect on 9 September 2021.

The mother of one child appealed. She contended that the amended scheme made the placement unlawful and therefore prevented the court from making an order compatible with article 5 of the Convention. She also argued that exercising the inherent jurisdiction would impermissibly cut across the statutory scheme.

The central issues were whether an unregistered children’s home fell within section 22C(6)(d) of the Children Act 1989, and whether the High Court could authorise deprivation of liberty in such a placement.

1. The appeal was dismissed unanimously. An unregistered children’s home falls wholly outside the placement scheme established by section 22C of the Children Act 1989. Such a home cannot fall within section 22C(6)(c), which expressly requires registration. Nor can it fall within section 22C(6)(d) as an “other arrangement”. Treating it as such would permit the registration requirement in paragraph (c) to be circumvented and would undermine the safeguards designed by Parliament.

2. The 2021 amendments to regulations 27 and 27A govern only placements made under section 22C(6)(d). They therefore did not alter the position of unregistered children’s homes. Those homes had never fallen within paragraph (d). The scheme consequently did not allow such placements, but the amendments did not introduce an express prohibition applicable to them.

3. The Supreme Court’s decision in Re T (A Child) [2021] UKSC 35 was binding. It established that the High Court may use its inherent jurisdiction to authorise restrictions on a child’s liberty in an unregistered children’s home where imperative conditions of necessity justify that course and no alternative is available. The jurisdiction protects a child, or others, from grave harm while recognising the positive obligations imposed by articles 2 and 3 and the local authority’s welfare and accommodation duties.

4. The High Court’s order is a lawful exercise of the common law jurisdiction and is therefore prescribed by law. It is a lawful order for article 5(1)(d) purposes. It does not cut across section 22C because the local authority makes the placement, while the court performs the distinct function of authorising the restrictions on liberty.

5. In any event, Re T also established that the inherent jurisdiction can remain available in imperative circumstances even where the underlying placement is expressly prohibited by the statutory scheme. That alternative issue did not arise on the court’s primary construction. There was no need to read words into the statutory scheme under section 3 of the Human Rights Act 1998.

1. Court of Appeal (Civil Division): The mother’s appeal was dismissed unanimously. The court upheld the availability of the High Court’s inherent jurisdiction.

2. High Court, Family Division: MacDonald J held that the High Court could authorise deprivation of liberty for a child under 16 in a placement outside the amended statutory scheme. No neutral citation for the appealed judgment was stated.