A Borough Council v E (Unavailability of Regulated Placement)

The court may authorise the deprivation of a child’s liberty under the inherent jurisdiction where the proposed arrangements constitute a deprivation of liberty under Art 5 of the ECHR and authorisation is in the child’s best interests. The court must apply the relevant factual test to the proposed restrictions, including continuous supervision and control and whether the child is free to leave. An unregulated placement may be authorised in exceptional circumstances where it is the only realistic alternative to an unsuitable existing placement, but registration proceedings do not cure deficiencies in the placement or replace the need for proper regulated provision. The court must impose safeguards, monitor the placement and review both registration and continuing best interests.

The local authority sought a care order and an order under the inherent jurisdiction authorising the deprivation of liberty of E, a nearly 16-year-old child, in an unregulated placement. E was then deprived of her liberty in an NHS hospital ward following repeated placement breakdowns, absconding, self-harm, suicide attempts, assaults and other serious risks. An assessment under the Mental Health Act 1983 had not resulted in admission, and no suitable regulated or secure placement was available.

The proposed placement had applied for Ofsted registration. The parties agreed that moving E there was the only realistic option, subject to safeguards and court oversight. The central questions were whether the proposed arrangements amounted to a deprivation of liberty and whether authorisation was in E’s best interests despite the placement’s unregulated and sub-optimal status.

1. Outcome. The court authorised the deprivation of E’s liberty in the identified unregulated placement, with reservations, and directed that the matter be listed for review pending Ofsted’s decision on registration.
2. Under the inherent jurisdiction, the court may authorise a deprivation of a child’s liberty where the proposed arrangements engage Art 5 of the ECHR and authorisation is in the child’s best interests. The arrangements must satisfy the three elements identified in Storck v Germany (2006) 43 EHRR 6: confinement to a limited place for a non-negligible period, absence of consent and attribution to the State.
3. The court applied the “acid test” in Cheshire West and Chester v P [2014] AC 896. E would be unable to consent, subject to continuous supervision and control, and not free to leave. The court assessed the child-specific context by reference to the guidance summarised in Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47, including the child’s age, circumstances, actual freedom and the nature and intensity of the restrictions.
4. The court considered the placement’s 2:1 staffing, continuous supervision, restrictions on communication and internet access, locks and restrictors, and supervised community access. These arrangements amounted to a deprivation of liberty.
5. Best interests required a narrow welfare assessment. Continued detention on the hospital ward was unsustainable, while the proposed placement was the only available alternative. Its deficiencies were material, and Ofsted registration would not automatically make it capable of meeting E’s needs. The local authority therefore had to provide interim safeguards, risk management, professional monitoring, training and information-sharing.
6. The court applied the President’s Guidance on unregistered placements. Registration had to be pursued urgently, the court would monitor progress, and the placement would remain subject to review. E’s enthusiasm for the placement was also a relevant welfare consideration.

This was a first-instance decision. The judgment records earlier interim care and liberty-authorisation orders made by HHJ Bancroft and HHJ Duggan, followed by directions hearings before Mr Justice MacDonald. No appeal is stated.