EBY (A Child) (Deprivation of Liberty Order: Jurisdiction) (17-year-old), Re

The High Court’s inherent jurisdiction may authorise the deprivation of liberty of a competent, objecting 17-year-old accommodated under section 20(3) of the Children Act 1989. Sections 100(2)(b) and (d), and section 31(3), do not expressly or impliedly exclude that jurisdiction.

Its exercise remains exceptional. The court must consider statutory leave requirements, significant harm, welfare, Article 5 necessity and proportionality, adequate safeguards, the imperative necessity of any unregistered placement, and any positive protective duties under Articles 2 and 3. The child’s wishes and feelings require significant weight but are not determinative.

A local authority sought authorisation under the High Court’s inherent jurisdiction to deprive a 17-year-old child of her liberty in accommodation provided under section 20(3) of the Children Act 1989. The child, who was competent and opposed the application, had been seriously harmed and exploited by criminal gangs. Her parents supported the application, while the child and Guardian opposed its continuation.

An interim deprivation of liberty order had been made previously. The central questions were whether the inherent jurisdiction was available despite sections 100(2)(b), 100(2)(d) and 31(3) of the 1989 Act, and, if available, whether it should be exercised.

1. Jurisdiction. The inherent jurisdiction was available. Section 100(2)(b) did not apply because the child was already accommodated under section 20(3); the order authorised deprivation of liberty but did not itself require accommodation. Section 100(2)(d) did not apply because deprivation of liberty of a child aged 16 or 17 was not an aspect of parental responsibility: parental consent could not authorise it.
2. Section 31(3), which prevents care or supervision orders for a 17-year-old, did not by necessary implication exclude the inherent jurisdiction. The statutory scheme did not prohibit deprivation of liberty in every circumstance, and excluding the jurisdiction could prevent protection against life-threatening harm contrary to Articles 2 and 3. Section 3 of the Human Rights Act 1998 supported a Convention-compliant construction.
3. Exercise of jurisdiction. Leave under section 100(3)–(5) was granted. No other order available to the local authority could achieve the necessary protection, and there was reasonable cause to believe that the child would suffer significant harm without the jurisdiction.
4. The order was in the child’s best interests and complied with Article 5(1)(d). The deprivation was necessary and proportionate, subject to regular judicial review and adequate safeguards. Her wishes, maturity and willingness to accept voluntary restrictions required significant weight, but the risk that consent could be withdrawn or circumvented meant that voluntary measures were presently insufficient.
5. The placement was unregistered. There was imperative necessity for it, and the President’s Guidance had been substantially followed, including notification to Ofsted and an application for registration. The local authority was directed to improve care planning, particularly education, health and welfare arrangements, since prolonged deficiencies would weigh against continuation of the order.
6. The child faced a real and immediate risk of death, life-threatening injury and Article 3 ill-treatment. A deprivation of liberty order was the only adequate and effective means of discharging the positive operational duties under Articles 2 and 3. The order was continued only until shortly after 27 October 2023, when the matter was to be reviewed.