In the matter of T (A Child) (Appellant)

The Supreme Court held that, in limited and exceptional circumstances, the High Court may exercise its inherent jurisdiction to authorise a local authority to deprive a child of liberty where no suitable approved secure accommodation is available. The court concluded that section 100 of the Children Act 1989 (in particular section 100(2)(d)) did not, read as a whole, bar such an exercise where the statutory routes are unavailable and the conditions for leave under section 100(3)–(5) are satisfied. The court further held that authorisation under the inherent jurisdiction can be compatible with article 5 ECHR provided the deprivation is "in accordance with a procedure prescribed by law"; accordingly, applications must follow the procedural safeguards modelled on the section 25 framework and the President’s Practice Guidance (including review and registration steps where an unregistered home is used). The child’s consent is a relevant factor in the welfare assessment but is not determinative of the court’s decision to authorise deprivation of liberty.

This appeal concerned whether the High Court may, under its inherent jurisdiction, authorise a local authority to place and thereby to deprive a child of liberty in accommodation outside the statutory secure accommodation regime.

Background and procedural history:

• The local authority (Caerphilly County Borough Council) sought and obtained High Court authorisations under the inherent jurisdiction to place T (then a looked-after 15 year old) in two placements that involved restrictions on liberty; one placement was unregistered and neither was approved as secure accommodation by the Secretary of State. Mostyn J authorised the placements in 2017–2018. T appealed to the Court of Appeal ([2018] EWCA Civ 2136), which dismissed her appeal. Permission to appeal to the Supreme Court was later granted and the appeal was heard in October 2020.

Nature of the application: The appeal challenged (i) whether the inherent jurisdiction may be used to authorise deprivation of a child’s liberty in cases of the kind under consideration and (ii) if it may, what weight should be given to the child’s consent to the proposed restrictive regime.

Issues for decision:

1. Whether section 100(2)(d) Children Act 1989, or the statutory scheme for secure accommodation (section 25 of the Children Act 1989 / section 119 SSW(W)A 2014), precludes the court from exercising the inherent jurisdiction to authorise deprivation of liberty in the limited circumstances where approved secure accommodation is unavailable.
2. Whether authorisation under the inherent jurisdiction in such circumstances would be "in accordance with a procedure prescribed by law" for article 5 ECHR purposes.
3. How the child’s consent to the arrangements should be treated in the welfare assessment.

Reasoning and conclusions:

• The Court analysed the origins and purpose of section 100: Parliament intended to confine routine conferral of parental-type powers to the statutory care order framework but did not abolish the inherent jurisdiction where there is reasonable cause to believe a child would suffer significant harm and the statutory remedies would not achieve the result (section 100(3)–(5)).
• The court held that authorisation under the inherent jurisdiction does not improperly confer on the local authority a novel parental power in breach of section 100(2)(d) where the authority already has parental responsibility under a care order and where leave under section 100 is properly obtained.
• The judgment explained the scope of "secure accommodation" under section 25 and emphasised restraint in expanding that concept; many bespoke therapeutic placements will not be "secure accommodation" as defined, but where an arrangement does amount to secure accommodation the section 25 regime applies where available.
• On article 5, the court found that the common law inherent jurisdiction, coupled with the procedural safeguards developed in case law and the President’s Practice Guidance (including monitoring, review, legal representation and steps towards registration of unregistered homes), can constitute a procedure prescribed by law for ECHR purposes.
• Consent by a Gillick-competent child is a relevant factor in the welfare assessment but does not automatically negate the need for an order; consent may be transient and the court must make a prospective welfare evaluation when authorising deprivation of liberty.

Wider context and practical implications: The judgments emphasised the severe shortage of approved secure placements and recognised the inherent jurisdiction as an imperfect but necessary safety‑net. The court stressed strict adherence to procedural safeguards and the President’s Guidance where unregistered homes are used, and reiterated that systemic reform and provision of appropriate registered accommodation is the proper long-term solution.

Appeal dismissed. The Supreme Court held that the High Court may, in appropriate and exceptional cases where no approved secure accommodation is available and the requirements of section 100(3)–(5) are satisfied, exercise its inherent jurisdiction to authorise a local authority to deprive a child of liberty. Such an exercise does not automatically breach section 100(2)(d) or article 5 ECHR provided the court applies and secures adequate procedural safeguards (including those in the President’s Practice Guidance). The child’s consent is relevant but not determinative to the best‑interests assessment.

High Court (Mostyn J: authorisations under the inherent jurisdiction made in 2017–2018); appeal to Court of Appeal dismissed [2018] EWCA Civ 2136; permission to appeal to the Supreme Court granted; Supreme Court judgment [2021] UKSC 35 dismissing the appeal.