Authorising unregistered care and deprivation of liberty — Martin Downs
5 August 2021
Legislatures in London and Cardiff have long ago established the most detailed safeguards and systems of registration to protect young people placed in children’s homes – most especially where that involves depriving them of their liberty. At the same time, the administrations in both capitals have presided over a situation whereby there is a significant shortage of such registered accommodation. This has tended to provoke expressions of outrage by the Judiciary.
One of these problem cases has reached the Supreme Court (T (A Child), Re  UKSC 35). In his Judgment, Lord Stephens referred to the
enduring well-known scandal of the disgraceful and utterly shaming lack of proper provision for children who require approved secure accommodation. These unfortunate children, who have been traumatised in so many ways, are frequently a major risk to themselves and to others. Those risks are of the gravest kind, and include risks to life, risks of grievous injuries, or risks of very serious damage to property. This scandalous lack of provision leads to applications to the court under its inherent jurisdiction to authorise the deprivation of a child’s liberty in a children’s home which has not been registered, there being no other available or suitable accommodation.
The case of Re T itself is curious in that the Appellants (acting on behalf of the young person who was the subject of a High Court authorisation under the inherent jurisdiction) appear to have pursued an appeal on arguments that were not live at the relevant points below. Nevertheless, the Supreme Court was prepared to entertain argument as to whether it is a permissible exercise of the High Court’s inherent jurisdiction to authorise a local authority to deprive a child of his or her liberty despite the restrictions placed on such applications in the Children Act 1989 and the fact that that the Act created a detailed scheme for secure accommodation orders in Section 25.
How startling the problem is can be gleaned from the fact that the Supreme Court concluded that the inherent jurisdiction could be used to approve the placement of a young person in an unregistered children’s home – despite the fact that those who are running the home may be committing a criminal offence (contrary to section 11 of the Care Standards Act 2000). The Court concluded that this did not relieve the Court from taking the positive operational step of placing a child in such a placement in order to discharge its positive duties under Article 2 & 3 where “there is absolutely no alternative” (a quote that may lead to future difficulties of its own – as with the similarly telling phrase by Baroness Hale, “nothing else will do” in the field of non-consensual adoption).
When considering whether the regime was compatible with Article 5 of the European Convention of Human Rights the Court reiterated established jurisprudence that “educational provision” was to be given a very wide interpretation (see Koniarska v United Kingdom (2000) 30 EHRR CD 139) and was, “not to be equated rigidly with notions of classroom teaching”. Additionally, the Supreme Court found that the authorisation of a deprivation of liberty under the inherent jurisdiction is, “in accordance with a procedure prescribed by law.” Lady Black specified that “[t]here is nothing in article 5, or in the case law of the European Court of Human Rights, that requires that the domestic law and procedure should be set out in statute and/or regulations, rather than being common law based ”.
Lord Stevens concluded that “[t]he courts, in the exercise of the inherent jurisdiction, must only authorise such a placement where there are “imperative considerations of necessity” and where there has been strict compliance with the matters contained in the Practice Guidance issued by the President of the Family Division, dated 12 November 2019, and entitled “Placements in unregistered children’s homes in England or unregistered care home services in Wales” and with the addendum dated 1 December 2020 to the Guidance.”
Read together (it is unfortunate that there are 3 separate concurring Judgments on a five justice Court), the Court stresses that if authorisation is to be granted under the inherent jurisdiction, then the same level of procedural protection should be offered as under the statutory scheme: the child may be made a party (with a guardian), the child’s views must be obtained and any confinement arrangements must be kept under close review.
Far from being deterred from making legislation in this area which is not actually capable of being complied with, Parliament at Westminster has recently passed the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021/161 – whose Regulation 4 prohibits local authorities in England from placing children under 16 in an unregistered home and which it is anticipated will come into effect in September 2021. This led Lady Arden (in an individual Judgment) to question whether it is possible to use the inherent jurisdiction to authorise placements in unregistered children’s homes for those young people under 16.
The Court also considered a subsidiary question as to whether an order is necessary if the young person consents to care arrangements which amount to a deprivation of liberty. The case itself was one where the young person’s consent was plainly not a settled intention and an order was justified. However, where the consent of the child is “valid and sufficient” that is likely to mean that has been no deprivation of liberty [Lady Black, 162].
The leading family law commentator, Andrew Pack (AKA suesspiciousminds), who has long referred to the inherent jurisdiction as the Courts’ “Magical sparkle powers”, expressed his misgivings on the basis that such sticking-plaster solutions mean that children remain living in places where they are at risk of ill-treatment akin to the “pin-down” scandal. In this case, the Supreme Court did consider simply refusing to authorise these bespoke arrangements, but was concerned that it would not thereby comply with its positive obligations under Article 2 and 3.
The implication of most of the Judgments and commentary on this tricky area of the law imply that it is a simple question of resources. There certainly appears to be a failure of the “market”. Many of those who appear in these cases might wonder whether there is also a failure of regulation. It is useful to consider the research report commissioned by the Department for Education (February 2020), entitled “Use of unregulated and unregistered provision for children in care”, where it emerges that registered children’s homes were becoming increasingly reluctant to accept children with highly complex needs and challenging behaviours. In part, this was as a result of registered providers becoming increasingly risk adverse because of their concerns about their Ofsted rating being negatively affected if they were unable to secure positive outcomes. There is also an assumption that registration is quick or anything other than deeply intrusive. The Supreme Court had the benefit of submissions by many interested parties and incorporated points made by many of them such as the Association of Lawyers for Children but did not appear to have invited Ofsted to be an interested party. This may have meant they had to give Judgment without all the pieces of the jigsaw.