Lancashire County Council v G (No. 4)(Continuing Unavailability of Regulated Placement)

Under the inherent jurisdiction, the court may authorise a child’s deprivation of liberty where the placement engages Art 5 of the ECHR and the order is in the child’s best interests. The court must undertake a global welfare assessment. A severe shortage of suitable regulated placements may, however, leave the court with only a necessity-based choice between authorising an inadequate placement and exposing the child to grave harm. Such a situation does not remove the best-interests requirement, but it may explain an authorisation made despite serious reservations. A child’s psychological integrity and mental health are protected aspects of private life under Art 8, giving rise to positive duties to secure appropriate protective measures.

The local authority sought continued authorisation under the inherent jurisdiction for the deprivation of G’s liberty in an unregulated emergency placement. G was a highly vulnerable young person with acute emotional and behavioural difficulties, repeated self-harm, suicidal behaviour and dangerous ingestion of objects. The parties agreed that she required a regulated placement with therapeutic provision, but no suitable placement was available. The court therefore had to decide whether the existing restrictions amounted to a deprivation of liberty and whether continued authorisation was lawful and in G’s best interests.

1. Deprivation of liberty. The restrictions in the placement, including continuous three-to-one supervision, locked doors, escorted movement, restraint when necessary, removal of mobile-phone access and ten-minute night checks, constituted continuous supervision and control. G was not free to leave and could not consent. The threshold under Art 5 of the ECHR was therefore met.
2. Best interests and necessity. The governing question remained whether continued authorisation was in G’s best interests. The court had to assess her global welfare needs rather than safety alone. In practice, the absence of any suitable regulated placement meant that the court faced a binary choice: refuse authorisation and expose G to an almost certain risk of serious or fatal harm, or authorise an unregulated placement which all parties accepted was unsuitable and increasingly precarious.
3. The court authorised the deprivation because the placement was the sole available option capable of keeping G safe in the broadest sense. The decision was made with grave reservations and did not signify that the placement adequately met G’s welfare needs. The court observed that a decision driven by the absence of alternatives came close to a necessity test rather than a genuine welfare assessment, raising a serious question about the proper exercise of the inherent jurisdiction.
4. Convention rights. G’s psychological integrity and mental health formed part of her private-life rights under Art 8, applying the reasoning in Bensaid v United Kingdom (2001) 33 EHRR 205. Those rights included a positive duty to take measures securing respect for psychological integrity, consistently with Stubbings v United Kingdom (1996) 23 EHRR 213 and Art 39 of the United Nations Convention on the Rights of the Child.
5. The continued authorisation was made on the basis of the extensive multidisciplinary safeguarding arrangements, risk-management plans and ongoing professional review. A copy of the judgment was directed to be sent to the specified public authorities and oversight bodies.