V (A Child) (Limits of Exercise of Inherent Jurisdiction), Re

The inherent jurisdiction cannot be used to require a child to remain accommodated where the child does not consent to future accommodation. Previous voluntary accommodation does not remove the statutory restriction in section 100(2)(b) of the Children Act 1989. Although wardship may exceptionally be available for a genuinely voluntary accommodation arrangement, leave under section 100(4) also requires reasonable cause to believe that the child is likely to suffer significant harm and that no other means can achieve the proposed result.

The local authority sought leave to invoke the inherent jurisdiction and make V, aged 17, a ward of court. V had been subject to an interim care order, which lapsed shortly before the application. She was living in foster care but clearly wished to return home, supported by her parents. Serious allegations concerning the parents remained undetermined in care proceedings relating principally to V’s younger siblings, and there were concerns about V’s historic references to suicide.

The central issue was whether the court had jurisdiction to grant leave for an order which would maintain V’s accommodation against her wishes.

1. Application refused. The court declined to grant the local authority leave to apply under the inherent jurisdiction.
2. Section 100(2)(b) of the Children Act 1989 prevents an order under the inherent jurisdiction which would have the effect of requiring the child to be accommodated. The requirement concerns future accommodation, rather than merely the fact that the child had previously been accommodated.
3. The fact that V had remained voluntarily accommodated after the interim care order lapsed did not permit the court to disregard section 100(2)(b). Because V clearly wished to return home, the proposed order would convert voluntary accommodation into ongoing involuntary accommodation. It was therefore outside the jurisdiction.
4. In a case where a child was genuinely voluntarily accommodated and wished to remain so, an application in wardship might exceptionally be appropriate. It would nevertheless have to satisfy section 100(4): reasonable cause to believe that the child was likely to suffer significant harm and the absence of another means of achieving the proposed orders. This was a limited, conditional observation.
5. The prospects of success of the substantive application were also relevant at the leave stage. Here, however, the proposed application failed at the threshold because it contravened section 100(2)(b).

The distinction between accommodation required against a child’s wishes and voluntary accommodation was drawn by reference to Re E (a child) [2012] EWCA Civ 1773.