Judge sets out limits of using ‘inherent jurisdiction’ to deprive liberty in gang member case

A judge has demonstrated the limits of the High Court’s powers to deprive young people of their liberty, as he turned down a council’s application to place a gang-affiliated teenager in secure accommodation.

The unnamed local authority sought broad authorisation for its officers, in partnership with the police, to enter premises, search and restrain the 17-year-old and deprive him of his liberty pending a further order.

The application came after the boy, ‘KS’, was identified by police as a suspect in a shooting that took place in daylight in front of witnesses. A secure panel meeting decided the risks of reprisals, and of further violent acts by KS, justified him being placed in secure accommodation – a move opposed by KS and his mother.

Senior figures, including the children’s commissioner and family courts president Sir Andrew McFarlane, have recently sounded the alarm at the extent to which councils are circumventing the Children Act 1989 in order to detain young people at risk.

In many instances this involves using the High Court’s so-called inherent jurisdiction to deprive young people of liberty in non-approved settings because of a chronic shortage of government-mandated secure accommodation, which falls under section 25 of the Children Act.

KS’s case differed in that he had no history of being ‘looked after’ and was too old to be made subject to a new care order – and so was in any case ineligible for secure accommodation under section 25.

In a judgment published this month, Mr Justice MacDonald said he could not criticise the local authority for “seeking to explore the outer boundaries of the court’s jurisdiction” given the “immense seriousness” of the situation.

But he concluded the orders sought by the council and backed by a children’s guardian, which would effectively authorise KS’s removal from his mother’s care without her consent, lay beyond the scope of the court’s power.

Violent incidents

KS was considered to have been at risk of criminal exploitation since 2017 and was assessed by police as being an active member of an organised crime group (OCG).

In September 2017 he was said to have witnessed another young man being stabbed in the neck, and the same month was arrested for allegedly threatening a woman with a bat and throwing a brick at her. In October 2017 he was placed on a child protection plan.

During May 2018 KS was found in possession of heroin at a property where there were weapons present, and over the following months he was arrested for cocaine possession and convicted for actual bodily harm.

Late in the year KS was stabbed in a machete and knife attack – for which he would not make a complaint – and in early 2019 he was believed to have been involved in another knife attack and in firearms offences.

Soon after being served with a ‘gun crime nominal notice’ by police in April 2019, KS was arrested for attempted murder in relation to a shooting, with a search of his family home finding an axe.

While KS’s mother and two younger children agreed to stay away from the family home due to fears of reprisals, KS refused to do so or to accept he was at risk.

‘Wider than usual’ order

On 26 April 2019 the local authority successfully obtained a without-notice order under the inherent jurisdiction of the High Court to detain KS, which was extended on 3 May and listed for a final hearing.

“It will be seen that the order is considerably wider than the usual terms of a deprivation of liberty order confirming that it is lawful for a local authority to deprive a child of his or her liberty [in non-approved accommodation],” Justice MacDonald observed.

“The order made under the inherent jurisdiction purports to delegate to the police power to enter any premises, detain and restrain KS and thereafter transport him to a placement that will deprive him of his liberty,” he added. “This part of the order appears to be an attempt to replicate, under inherent jurisdiction, the terms of a recovery order under section 50 of the Children Act.”

The day after the initial order was made, KS was detained at a non-secure unit but absconded on 1 May, first telling a social worker that he was not involved in the April shooting or with gangs.

While he had not been found by the time of the final hearing, KS wrote to the court via his lawyers saying that he considered the deprivation of liberty authorisation unfair and that he did not feel in danger. He added that he wished to go back to his mother but would contemplate returning to the non-secure unit if the threat of secure accommodation, which had by then been identified, was “taken off the table”.

Replicating section 25

But social workers said KS’s mother had not taken the threat to his life seriously and that risks were escalating.

The local authority argued that if a secure accommodation order could not be made under section 25 of the Children Act, it was in his interests for the court to replicate this using its inherent jurisdiction.

This jurisdiction enables the High Court to make any order or determine any issue in respect of a child, in that child’s best interests.

However, section 100 of the Children Act prohibits the inherent jurisdiction being exercised “so as to require a child to be accommodated by or on behalf of a local authority”. The council said that approving its application “would not ‘require’ the local authority to accommodate KS, but rather simply ‘authorise’ accommodation”.

But KS’s lawyers disputed this. They said there was no legal basis to accommodate KS against the consent of his mother, who retained exclusive parental responsibility for him, without an order requiring KS to be accommodated by or on behalf of the local authority.

The lawyers further argued that, while the council had by now sourced an approved secure accommodation place, to make an order for a child who was not ‘looked-after’ would cut across the intentions of the statutory regime under section 25. Justice MacDonald accepted that section 25 could not apply to KS.

Authorising the council’s order “would be to require KS to be removed from his mother’s care and be accommodated by the local authority”, he added. “This course of action is prohibited by s100 of the Children Act.”

In striking out the council’s application, the judge concluded that, as per KS’s request, the threat of secure accommodation had been “taken off the table by operation of law”.

“It is my hope that KS proves to be a person who honours his word and will now re-engage with those professionals who, with his best interests at heart, are working so hard to keep him safe,” Justice MacDonald said.

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