Blackburn with Darwen Borough Council v AD

When the inherent jurisdiction is used to authorise restrictions that deprive a child of liberty, the court must scrutinise both the legal justification and the practical arrangements. It may question public authorities, require explanations, and authorise or refuse restrictions engaging Article 5. It cannot direct psychiatrists to reach a clinical conclusion, order detention under the Mental Health Act 1983, create unavailable resources, or redesign health and social care. Where a child remains deprived of liberty, repeatedly fails to meet detention criteria, and has no identified therapeutic pathway, the public body responsible for psychiatric assessment and treatment may need to participate as a party so that effective judicial scrutiny is possible.

These were ongoing care proceedings under Part IV of the Children Act 1989 and proceedings under the inherent jurisdiction concerning AD’s deprivation of liberty. AD, almost 16, had engaged in serious self-harm and suicidal behaviour and was in a general hospital under constant supervision after the breakdown of a placement. Assessments repeatedly concluded that he did not meet the criteria for detention under the Mental Health Act 1983. The central issues were whether the arrangements could be effectively scrutinised and whether Lancashire and South Cumbria NHS Foundation Trust, responsible for psychiatric assessment and treatment, should be joined as a party. The wider question was how AD could be kept safe while receiving meaningful therapeutic help.

The court made an order requiring the active participation of Lancashire and South Cumbria NHS Foundation Trust and treated it as a necessary party. It also directed that the anonymised judgment be provided to specified public authorities and published subject to strict preservation of the anonymity of AD and his family.

1. Limits of the inherent jurisdiction. The court could not substitute itself for psychiatrists, direct an assessment to reach a particular conclusion, order detention under the Mental Health Act 1983, create unavailable resources, or redesign the health and social care system. The inherent jurisdiction did, however, permit the court to scrutinise arrangements, question public authorities, require explanations, and authorise or refuse restrictions interfering with Article 5 rights.
2. Article 5 scrutiny. In evaluating AD’s Article 5 rights, the court had to consider the justification for his deprivation of liberty. It accepted that the relevant basis was that he was of unsound mind. The difficulty was that his confinement did not appear to be directed towards treating his underlying or core disorder, but towards making decisions about what should happen next.
3. Joinder and effective scrutiny. Given the continuing deprivation of liberty, repeated conclusions that the statutory detention criteria were not met, and the absence of an identified therapeutic pathway, the court could not properly scrutinise the arrangements without hearing directly from the public body responsible for psychiatric assessment and treatment. The Trust’s participation was therefore necessary.
4. Wider significance. The case raised issues extending beyond AD concerning the collective response of public services to highly vulnerable children who do not fit neatly within existing statutory frameworks. The directions for circulation and publication were intended to prompt an achievable therapeutic plan while preserving AD’s safety.