Article 39 v Secretary of State for the Home Department

The inherent jurisdiction may be used flexibly to protect children, but it is subject to constitutional limits. Where a comprehensive statutory scheme gives public authorities powers capable of protecting the children, the court should use the inherent jurisdiction only if the scheme contains a genuine lacuna. Wardship cannot be used as a general mechanism for reviewing how statutory authorities exercise their powers. Any challenge to the legality of that exercise should ordinarily proceed by judicial review. A practical difficulty caused by children going missing does not itself create a lacuna in the statutory scheme. The court therefore refused to invoke wardship in circumstances where the statutory agencies were pursuing efforts to locate the children and safeguarding powers remained available once responsibility could be identified.

Article 39, a charity concerned with children in state care, applied to invoke the High Court’s inherent jurisdiction in relation to unaccompanied asylum-seeking children who had gone missing from Home Office-operated hotel accommodation in Brighton and Hove.

The children had not yet been referred to a local authority under the National Transfer Scheme. Article 39 contended that the children lacked the statutory safeguards associated with local-authority care and that this exposed a gap in protection. The Secretary of State for the Home Department and the Secretary of State for Education opposed the application, relying on the powers and duties available under the Children Act 1989 and related safeguarding legislation. The central issue was whether the circumstances justified making all or some of the children wards of court.

The application was refused. The court held that the inherent jurisdiction was neither appropriate nor available on the facts.

1. The wardship jurisdiction is broad and adaptable, but its exercise is subject to self-imposed limits. The court must respect the constitutional principle that an inherent jurisdiction should not cut across a statutory scheme.

2. The Children Act 1989 establishes a comprehensive framework for protecting children in need in a local-authority area. Sections 17, 20, 22, 31 and 47 provide relevant duties and powers, while section 11 of the Children Act 2004 imposes safeguarding arrangements. Section 100 of the Children Act 1989 also restricts the use of the inherent jurisdiction to require local-authority care or accommodation.

3. The statutory scheme did not contain a lacuna. If the children were present in Brighton and Hove and met the statutory criteria, the local authority would in all probability have responsibility for them. The uncertainty arose because the children were missing and it was therefore unclear which authority had responsibility, not because the statutory scheme failed to provide protective powers.

4. The police and safeguarding agencies were engaged in efforts to trace the children. Even if statutory powers were being exercised inadequately, the appropriate remedy would be judicial review, rather than wardship. The inherent jurisdiction is not a general power to review discretionary decisions of statutory authorities.

5. The court therefore declined to make the children wards of court.