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

The High Court may use its inherent jurisdiction to authorise a local authority to deprive a child of liberty where no suitable statutory placement is available and intervention is necessary to avert a real possibility of grave harm. Section 100 of the Children Act 1989 does not prohibit such an order.

Authorisation of placement in an unregistered children’s home requires imperative considerations of necessity, strict observance of regulatory guidance and rigorous judicial monitoring. The order does not authorise any criminal offence committed by the home’s operator.

Common law may constitute a procedure prescribed by law under article 5 of the European Convention on Human Rights. The child’s consent is relevant to welfare, necessity and proportionality, but is not a jurisdictional bar. Valid consent when restrictions are implemented may mean that no deprivation of liberty then occurs.

T was a 15-year-old child in the care of Caerphilly County Borough Council. The statutory criteria for secure accommodation were considered to be satisfied, but the council sought alternative placements because approved secure accommodation suitable for T was unavailable. One placement was an unregistered children’s home; neither placement was approved for use as secure accommodation.

Mostyn J authorised the council, under the High Court’s inherent jurisdiction, to deprive T of her liberty in accordance with its care plans. Although T expressed consent to the restrictions, the judge found that her consent was neither genuinely expressed nor likely to endure. The Court of Appeal dismissed her appeal: [2018] EWCA Civ 2136.

By the Supreme Court hearing T had turned 18 and the orders had been discharged. The court nevertheless determined whether section 100 of the Children Act 1989, the statutory secure-accommodation scheme or article 5 of the European Convention on Human Rights prevented recourse to the inherent jurisdiction, and what relevance a child’s consent should have.

1. Disposition. The appeal was dismissed unanimously. Lady Black gave the principal judgment, with which Lord Lloyd-Jones, Lord Hamblen and Lord Stephens agreed. Lord Stephens gave additional reasons with which those three Justices agreed. Lady Arden agreed in the result and gave further reasons.

2. Section 100. Section 100(2)(d) of the Children Act 1989 did not prevent the orders. A care order had already conferred parental responsibility on the local authority, which also had a statutory duty to accommodate T. The court itself determined whether the proposed deprivation of liberty was lawful; it did not confer on the authority a new power to determine a question of parental responsibility. The conditions in section 100(4) were satisfied because no other available order could achieve the required protection and significant harm was likely without intervention.

3. Secure accommodation. Whether accommodation is secure accommodation under section 25 depends on the accommodation itself and the purpose for which it is provided. The expression identifies accommodation designed for, or having as its primary purpose, the restriction of liberty. Purpose-designed accommodation is likely to comprise secure children’s homes. A bespoke therapeutic placement will usually have care or treatment, rather than restriction of liberty, as its primary purpose.

4. Unregistered homes. Even where a proposed placement is a children’s home lacking registration or approval, the inherent jurisdiction remains available if there is absolutely no alternative and the child or another person faces a real possibility of grave harm. Its exercise requires imperative considerations of necessity, strict compliance with the President of the Family Division’s Guidance and addendum, prompt pursuit of registration, and rigorous judicial monitoring. The order authorises the local authority’s placement decision; it neither authorises an offence under section 11 of the Care Standards Act 2000 nor grants immunity from prosecution. The decision was confined to that offence and was not a wider precedent permitting disregard of criminal legislation.

5. Article 5. A rule governing deprivation of liberty need not be statutory to be a procedure prescribed by law. The inherent jurisdiction, section 25 principles, judicial authority and procedural protections together supplied an accessible and foreseeable legal framework. The child must be a party, normally have a guardian, be heard, receive evidence explaining the proposed regime, and have access to prompt reviews and liberty to apply. Any detention must also fall within article 5(1)(d), including its broadly understood purpose of educational supervision.

6. Consent. Consent was not a jurisdictional prerequisite. The court makes a prospective order authorising, rather than requiring, restrictions if anticipated circumstances arise. A child’s wishes and consent form part of the welfare, necessity and proportionality assessment. If valid and sufficient consent exists when the arrangements are implemented, the circumstances may not then constitute a deprivation of liberty. These observations were necessarily limited because T’s consent ground was academic and the findings below had been vindicated.

7. Additional reasoning. Lord Stephens held that the positive operational duties under articles 2 and 3 reinforced the availability of protective action where the relevant grave risks arose. Lady Arden emphasised separately that inherent jurisdiction has principled limits, must respect legislative intention and should be used within an intensely regulated field only where necessity is exceptionally high.

1. United Kingdom Supreme Court: The court unanimously dismissed T’s appeal and upheld the availability of the High Court’s inherent jurisdiction in the circumstances addressed by the appeal: [2021] UKSC 35.
2. Court of Appeal: The court dismissed T’s appeal against the authorisation of both placements. It found no basis for holding that Mostyn J had been wrong to make the orders despite T’s apparent consent: [2018] EWCA Civ 2136.
3. High Court: Mostyn J authorised Placement 1 in July 2017 and later renewed the authorisation. After that placement broke down, he authorised Placement 2 in March 2018. He found that T’s apparent consent lacked the genuine and enduring quality required to make judicial authorisation unnecessary.