T (Inherent Jurisdiction: Deprivation of Liberty)

Where no secure accommodation placement is actually available, the statutory secure-accommodation regime does not provide an alternative remedy for the purposes of section 100(4)(a) of the Children Act 1989. The High Court may therefore grant a local authority leave to invoke its inherent jurisdiction if there is reasonable cause to believe that the child is likely to suffer significant harm without its exercise.

Harm includes emotional and psychological harm. The welfare assessment must be holistic and realistic. It must address the consequences of refusing authorisation, including the absence of any alternative placement. An unregistered placement may be authorised only where imperative necessity requires it and the applicable guidance is followed.

T, a 17-year-old looked-after child with ADHD and autistic spectrum disorder, had displayed escalating violence, threats, property damage and self-harm. Following a serious incident at his residential placement, the local authority obtained a short-term deprivation-of-liberty authorisation under the inherent jurisdiction.

Recorder Basu KC then refused the authority leave to continue its application. He considered that a secure-accommodation order under section 25 of the Children Act 1989 was available and that there was insufficient evidence that T was likely to suffer significant harm. The local authority appealed. The central issues were whether section 100 permitted recourse to the inherent jurisdiction and whether the proposed restrictions at an unregistered placement were in T’s best interests.

1. Appeal allowed unanimously. The Recorder’s refusal to grant leave under section 100 of the Children Act 1989 could not stand. The evidence established both conditions in section 100(4).

2. Section 100(4)(a) requires a practical assessment of whether the result sought can be achieved through another order available to the local authority. Although section 25 provides a statutory secure-accommodation regime, it was unavailable because no secure placement existed. It was also contrary to T’s welfare to require an immediate move from the placement in which he wished to remain.

3. Section 100(4)(b) was satisfied. Harm is not confined to physical injury. By section 105(1), read with section 31(9), it includes emotional and psychological harm. T’s recent incident had to be assessed in the context of his sustained and escalating dysfunctional behaviour. There was plainly reasonable cause to believe that he was likely to suffer significant harm if the inherent jurisdiction were not exercised.

4. The proposed staffing, restraint and transport measures amounted to a deprivation of liberty under Article 5, applying Storck v Germany and the acid test in Cheshire West. The declaration was in T’s best interests. The court considered his risks, the placement’s willingness to retain him only with authority to restrain when necessary, his progress and wish to stay, the absence of any alternative placement, and the risk of homelessness.

5. Although the placement was unregistered, the imperative considerations of necessity identified in Re T, [2021] UKSC 35, justified authorisation provided that the President’s guidance was followed. The court authorised the deprivation of liberty until 17 April 2026, subject to measures which were necessary, proportionate, least restrictive, respectful of T’s dignity, and involved only the minimum necessary force or restraint.

• Court of Appeal (Civil Division) Allowed the local authority’s appeal and granted leave to invoke the inherent jurisdiction. It authorised T’s deprivation of liberty until 17 April 2026: [2026] EWCA Civ 307.

• High Court of Justice, Family Division Recorder Basu KC, sitting as a High Court judge, refused the local authority leave to seek a continuing deprivation-of-liberty order under the inherent jurisdiction.