Derby City Council v BA

The High Court’s inherent jurisdiction to authorise the deprivation of a child’s liberty is not extinguished merely because a placement will not comply with the President’s Practice Guidance. However, compliance with the Guidance is central to the safe and lawful exercise of that jurisdiction. The court should ordinarily refuse to authorise deprivation of liberty in an unregistered placement where the provider will not or cannot apply expeditiously for registration. Registration is a statutory obligation where the placement is a children’s home. Exceptional short-term authorisation may be justified where immediate action is required to keep the child safe and no alternative is available. Any such order should last for the shortest possible period while a registered or registration-compliant placement is identified.

Three local authorities sought permission to invoke the inherent jurisdiction and orders authorising the deprivation of liberty of children placed, or proposed to be placed, in unregistered settings. The cases followed the court’s earlier decision in Tameside MBC v AM & Ors (DOL Orders for Children Under 16), where it held that the inherent jurisdiction remained available in defined circumstances.

The present preliminary issue was whether the jurisdiction could be exercised where the placement would not or could not comply with the President’s Practice Guidance requiring prompt steps towards registration. The Secretary of State for Education and Ofsted submitted that it could not; the local authorities submitted that it could.

1. Jurisdiction. An unwillingness or inability to comply with the President’s Practice Guidance does not, of itself, oust the High Court’s inherent jurisdiction. The Guidance is non-statutory and cannot create or remove substantive jurisdiction. The court must nevertheless take it into account.
2. Central importance of registration. Where a placement is a children’s home, the Care Standards Act 2000 requires the person carrying on or managing it to apply for registration. The statutory regulatory scheme exists to protect vulnerable children. The Practice Guidance seeks to return an otherwise unregistered placement to that scheme as quickly as possible.
3. Best interests and Article 5. Deprivation of liberty is a draconian interference. An unregistered placement which will not or cannot apply for registration leaves the child outside important statutory safeguards and cannot be adequately regulated by judicial oversight alone. The court is not an independent regulator and cannot replicate Ofsted’s inspection and enforcement functions. Compliance with the Guidance forms part of the procedural protection supporting lawful and non-arbitrary detention under article 5 of the Convention.
4. Ordinary rule. Although the issue remains fact-sensitive, the court should not ordinarily authorise deprivation of liberty where an unregistered placement makes clear that it will not or cannot apply expeditiously for registration. A provider who refuses to apply, or cannot realistically apply, is unlikely to offer a placement meeting the child’s best interests. Continued delay in prosecuting an application may likewise lead the court to refuse any extension.
5. Short-term exception. In an immediate safety case, the court may make a very short order to hold the ring while alternatives are found. The order should last for the least time possible, with a timetable for identifying a registered placement or one willing to apply for registration. The Guidance’s timescales permit flexibility where the provider and local authority are working transparently with Ofsted to a defined and monitored plan.
6. The preliminary issue was determined in those terms. The three applications were to be listed separately for determination on their merits.

The judgment records an earlier judgment in Tameside MBC v AM & Ors (DOL Orders for Children Under 16), published as [2021] EWHC 2472 (Fam), concerning the availability of the inherent jurisdiction. Permission to appeal from an order in one of the related cases had been granted, with the appeal pending before the Court of Appeal. The present judgment determined a further preliminary legal issue at first instance.