Court can still agree children’s deprivation of liberty in placements banned by new law, says ruling

The High Court will still be able to authorise depriving children of their liberty in placements banned by regulations implemented last week, a judgment has ruled.

The new law bans local authorities from placing children in care under 16 in unregulated settings, on the grounds that they are too young to be in semi-independent or independent accommodation that does not provide care.

But local authorities have raised concerns that the ban will make it more difficult for them to arrange bespoke, unregistered placements for children with specific needs, a view endorsed by a judge in a recent ruling.

However, a further judgment in the High Court last week has ruled that the court will still be able to use the inherent jurisdiction to authorise the deprivation of liberty of a child under 16 in a now-banned placement, in the child’s best interests.

Mr Justice MacDonald considered four cases where local authorities – Tameside, Derby, Lambeth and Manchester – had asked the High Court to authorise the deprivation of liberty of a child in their care in bespoke placements that were not regulated.

He considered all four cases in the context of the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021, which came into force on 9 September and banned the placement of children under 16 in unregulated settings.

In July the Supreme Court ruled, in Re T, that the High Court’s inherent jurisdiction could be used to authorise the deprivation of a liberty of a child in an unregistered children’s home, where accommodation was being provided with care. This was despite it being illegal for providers not to register such a setting.

Best interests test

The Supreme Court found that such authorisation was permissible under “imperative conditions of necessity”.

Drawing on the Supreme Court ruling, Mr Justice MacDonald concluded that the best interests test to determine whether the High Court’s inherent jurisdiction could be used to authorise a deprivation of liberty in a now-banned placement would need to be informed by whether conditions of “imperative necessity” obtained. Though each case would turn on its own facts, in the absence of these conditions, it would be difficult for the High Court to authorise such a deprivation of liberty, he said.

In making such placements, the judge said local authorities should follow guidance issued in 2019 – and updated in 2020 – by the president of the family division of the High Court, Sir Andrew McFarlane.

Ofsted and the secretary of state for education, who had intervened in the case, had argued that such an order could only be authorised if there was no lawful placement available. However, Mr Justice MacDonald said it was not appropriate to define what was meant by conditions of imperative necessity, and said there were circumstances in which an order could be granted where there was such a lawful placement available.

In his conclusion, he said the inherent jurisdiction existed to ensure that laws passed by “however commendable their aims, do not inadvertently operate so as to do harm to children”.

Local authorities ‘have no choice’

He also reiterated the concerns expressed by many judges, over several years, about the lack of resources in the care system that resulted in judgments like this having to be made. Mr Justice MacDonald cited evidence that, as of last week, 54 children were waiting a welfare bed in a secure children’s home but there were no such beds available.

“I can observe that, in the experience of this court, the prohibition on placing children under the age of 16 in unregulated accommodation contained in the amended statutory regime is not coming into force on 9 September 2021 in the context of local authorities choosing to utilise such placements for vulnerable children in great need.

“Rather, it is coming into force in the context of local authorities having no choice but to employ such unregulated provision due to the well-recognised acute lack of appropriate provision.”

 ‘Flexible response needed’

Charlotte Ramsden, president of the Association of Directors of Children’s Services, welcomed the judgment that local authorities can continue to use bespoke placements “as a last resort” for children who are in “extreme and heightened distress”.

“The use of unregulated provision for under 16s has always been an option of last resort and we are working intensively on the development of alternatives for highly specialist care and support,” she said.

“Currently, quality specialist placements are very hard to come by leading at times to the development of bespoke individual arrangements.

“In advance of the changes to care regulations coming into force, local authorities have worked hard to move the few children in such placements into registered homes but it remains the case that in a very small number of instances there might be no obvious alternative and we believe a wholly new response is needed that is flexible, agile, highly therapeutic and delivered in a safe environment.”

Duty to ensure sufficient placements

A Department for Education spokesperson said: “Local authorities have a duty to ensure there is sufficient available accommodation for all children in their care.

“The most appropriate placement for children subject to a Deprivation of Liberty order will be in a registered setting and local authorities should be following the President of the Family Division’s guidance on Placements in unregistered children’s homes in England or unregistered care home services in Wales and getting provision registered.”

The target of the regulations banning unregulated placements for under-16s is independent and semi-independent provision, where accommodation is provided with support, but not care. The local authorities in this case and Ofsted wanted the High Court to determine whether they also prohibited local authorities from placing children under 16 in unregistered children’s homes – settings providing accommodation and care that are not registered.

However, the court declined to do so, saying this issue did not impinge on the central point it was concerned with, regarding the scope of the inherent jurisdiction. Considering the lawfulness of a local authority placing a child under 16 in an unregistered children’s home also required a wider examination of the law than just the new regulations, which the court was concerned with in this case.