Deprivation of Liberty Orders Under The Inherent Jurisdiction

  • Category: Family
  • 12th April 2022
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Miranda Lopez

Below, pupil barrister Miranda Lopez discusses if it is correct to use the Inherent Jurisdiction of the High Court to sanction the placement of children under the age of sixteen in unregulated placements and/or to deprive such children of their liberties?

Whilst studying for the BPTC and attending an event at my Inn of Court, I recall a speaker quoting Mahatma Gandhi. He said, “the true measure of any society can be found in how it treats its most vulnerable members”. Such a quote is certainly food for thought whilst examining the unfortunate reality known to family practitioners and family judges alike, in relation to the distinct lack of availability of compliant s25 secure accommodation placements for children and adolescents.

Sir James Munby, former President of the Family Division, expressed in his  salient judgment Re X (A Child)(No.3) [2017] EWHC 2036 (Fam):

“What this case demonstrates, as if further demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with. We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.”

The sentiments of Sir James Munby in Re X (A Child) (No 3) [2017] EWHC 2036 (Fam) have been resoundingly echoed by family judges. Mr Justice Cobb states in Re S (Child in care: Unregulated placement) [2020] EWHC 1012 (Fam) some three years after Sir James Munby’s judgment in Re X (A Child) (No 3) [2017] EWHC 2036 (Fam):  

“[this] case is depressingly all too familiar to those working in the Family Court, and is I believe indicative of a nationwide problem. There is currently very limited capacity in the children’s social care system for young people with complex needs who need secure care; it appears that demand for registered places is currently outstripping supply. This is the frustrating experience of the many family judges before whom such difficult cases are routinely presented.”

It is undeniable that there is a national crisis in relation to the lack of compliant s25 secure accommodation placements. The deep-rooted issue of inadequate resources, thus creating a lack of s25 complement placements has, in turn, resulted in an increased number of applications by the Local Authority for the High Court to use Deprivation of Liberty Orders Under the Inherent Jurisdiction. In a somewhat desperate attempt to plug the ever-increasing gap in s25 compliant secure accommodation placements created by inadequate resources.

Lady Black emphasises in the Supreme Court Judgement T (A Child) Re [2021] [UKSC] 35 that the situation “has been drawn repeatedly to the attention of those who could be expected to take steps to ameliorate the situation, without noticeable effect.” Lady Arden commented that there is “not just a specific gap but a systemic gap” in the care system.

High Court Judges’ use of the Inherent Jurisdiction to bridge the gap in the lack of s25 secure accommodation placements created debate amongst family practitioners. Firstly, whether the use of the Inherent Jurisdiction in such circumstances is contrary to Article 5 of the ECHR and secondly, what is the relevance of the child’s consent to such a placement?

The Supreme Court Judgement T (A Child) Re [2021] [UKSC] 35 provided essential guidance and much needed clarity in relation to whether the High Court can use the Inherent Jurisdiction to place a child under the age of 16 in an unregulated placement. Lady Black determined within the judgement that use of the Inherent Jurisdiction to deprive a child of their liberty is not a breach of Article 5 ECHR, due to depravation of liberty being permitted by the common law.

One of the supplementary arguments that was proposed in T (A Child) Re [2021] [UKSC] 35 and therefore addressed by Lady Black in her judgement was the relevance of the child’s consent to such a placement. Lady Black explained:

“This is not the occasion for a comprehensive exploration of the complications attending consent to deprivation of liberty. For the moment, it is enough to observe that, even leaving to one side difficult issues about the pressures that circumstances may place on a child to consent to a proposed arrangement, an apparently balanced and free decision made by a child may be quickly revised and/or reversed. The facts of this case clearly demonstrate how insecure may be the child’s apparent consent. Having said that, there may also be cases in which the child is expressing a carefully considered and firm view.”

Lady Black then explained that:

“When the court considers the local authority’s application, any consent on the part of the child will form part of the circumstances that it evaluates in deciding upon its order. I would not presume to forecast, still less dictate, what its implications would be for any particular case. That must depend upon the facts. The child needs to be, and is, protected by the institution of the proceedings and the consequent involvement of the court. His or her personal autonomy will be respected by being fully involved in those proceedings, and able to express views about the care that is being proposed, as ensured by the procedures stipulated by statute (for section 25) and by case law (for the inherent jurisdiction). It is worth noting that, in a case where the local authority is authorised to deprive the child of his or her liberty but, when it comes to putting the restrictive arrangements into practice, the child is in fact consenting to them in circumstances where that consent is valid and sufficient, there would be no deprivation of liberty. In that situation, the local authority would simply be providing the child with accommodation.”

Lady Black articulated that the Inherent Jurisdiction is a means of providing protection for children when their welfare requires it as:

“it is unthinkable that the High Court, with its long-established role in protecting children, should have no means to keep these unfortunate children (and others who may be at risk from them) safe from extreme harm, in some cases death. If the local authority cannot apply for an order under section 25 because there is no section 25 compliant secure accommodation available, I would accept that the inherent jurisdiction can, and will have to be, used to fill that gap, without clashing impermissibly with the statutory scheme.”

She further emphasised:

“How can a local authority fulfil these duties in the problematic cases with which we are concerned if they cannot obtain authorisation from the High Court to place the child in the only placement that is available, and with the ability to impose such restrictions as are required on the child’s liberty? It is such imperative considerations of necessity that have led me to conclude that the inherent jurisdiction must be available in these cases. There is presently no alternative that will safeguard the children who require its protection.”

Lady Arden provided further clarification in the judgment by outlining that the Inherent Jurisdiction to deprive a child of their liberty should only be used when there is no other option available:

“Where the field is already populated by intense statutory regulation, it should in general only be used in cases where there is a high degree of necessity about its exercise: the court must in general be left with no alternative if it is to fulfil an important objective within the inherent jurisdiction. That might be because of urgency and the lack of the availability of an alternative, coupled with appropriate conditions attached by the court to the exercise of the inherent jurisdiction.”

Additional guidance to the approach of the court is given in the seminal judgment of Mr Justice MacDonald in Tameside MBC v AM Others [2021] EWHC 2472 (Fam), in which he explained that use of the Inherent Jurisdiction as a means of depriving a child or adolescent of their liberty is lawful when there is no other option that is available to the court. Mr Justice MacDonald stated:

As recognised by Lady Black in Re T, it would be unthinkable if the High Court could not use its prerogative jurisdiction to protect a child in circumstances where, but for the exercise of that jurisdiction, the child would be left at risk of significant harm or cruel or inhumane treatment or death because it is not possible, by reason of a lack of resources or other compelling consideration of necessity, to comply with the amended statutory scheme.”

Mr Justice MacDonald posed:

“…whether, given the central role accorded to the President’s Guidance by the Supreme Court in Re T and by this court in Tameside MBC v AM & Ors (DOL Orders for Children Under 16), it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the Practice Guidance.”

He determined that the placement needed to be informed by “imperative conditions necessity”. He went on to explain that:

“Within the context of the foregoing principles, at various points in its judgment the Supreme Court emphasised that the exercise of the inherent jurisdiction in the circumstances with which the Supreme Court was concerned in Re T required the existence of what the court termed “imperative conditions of necessity”. As noted above, this has led in this case to a difference of view regarding the nature and effect of imperative conditions of necessity and, in particular, whether the Supreme Court decision in Re T limits the use of the inherent jurisdiction to cases in respect of children under the age of 16 only to those cases in which it has been established that there is no placement available that is lawful by reference to the statutory scheme or whether the jurisdiction is preserved in all circumstances where the exercise of the inherent jurisdiction to approve a deprivation of liberty with respect to a placement that is unlawful by reference to the amended statutory scheme is  required to protect the welfare of the subject child.”

It is clear that there is an ever-increasing number of children and adolescents who have complex needs. It is also undeniable that there is a national crisis in relation to the lack of s25 compliment secure accommodation placements available to the children and adolescents who need them. The use of the Inherent Jurisdiction to bridge this gap has certainly not been without criticism. However, the court has an entrenched maxim to protect children and adolescents who are in need. There is no straight forward or easy solution to address the complexities which surround the lack of s25 compliant placements and the use of the Inherent Jurisdiction, and the manner in which it currently is used to deprive a child of its liberty and to place a child under the age of sixteen in an unregulated placement. Thus far, it appears that use of the Inherent Jurisdiction in such a way remains the only option to protect the most vulnerable children and adolescents when their welfare requires it. Where there is no other option to the court and where failing to act would likely result in devastating consequences. The Supreme Court has remarked that the Inherent Jurisdiction may be used to “fill the gaps in the present provision”, however, “it cannot be doubted that it is only an imperfect stop gap, and not a long term solution”. As to what the long term solution will be, it may well be that parliament seeks to act to “fill in the gaps”.