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And There Lurks the Minotaur: The Interrelationship Between the Inherent Jurisdiction and Section 25, CA 1989: Part II

Alex Laing, barrister of Coram Chambers, considers further the interrelationship of secure accommodation and the inherent jurisdiction and the principles which should govern its use.

Alex Laing, barrister, Coram Chambers

Alex Laing, barrister, Coram Chambers

In And There Lurks The Minotaur: Part I, I addressed two questions: in circumstances in which section 25, CA 1989 is prima facie applicable, should leave under section 100, CA 1989 be given to apply for an inherent jurisdiction order? And, are there situations in which a court should decline to exercise its inherent jurisdiction despite its availability in strict legal terms?

In Part II, I look more broadly at the principles that should govern the use here of the inherent jurisdiction. If the inherent jurisdiction is applicable, to what extent should the criteria and safeguards under section 25, CA 1989 be imported by analogy to its exercise, and what role do best interests and articles 5 and 8 play?

A recap of definitions
This article refers both to: the Gateway Criteria – those three criteria that determine the prima facie applicability of section 25, CA 1989 to a given case; and the Section 25 (1) Criteria – the disjunctive criteria (absconding criteria and injury criterion) that must be satisfied for a child to be kept in secure accommodation under section 25, CA 1989. For fuller definitions, see Part I.

Principles – what principles?
The question of what principles should be applied to the exercise of the inherent jurisdiction to deprive a child of her liberty throws up a preliminary question: once leave is granted under section 100, CA 1989, must we apply any further principles at all?

At this point, we return to AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam). Readers of Part I will recall that AB concerned a child, 14, who had been diagnosed with a moderate to severe learning disability and attention deficit hyperactivity disorder. At the time of the hearing, AB was subject to a care order and placed in a children's home. The Gateway Criteria, however, did not apply: the children's home was not a registered one. In any event, the Section 25 (1) Criteria were not met. All parties were in agreement that to move AB to a different placement (i.e. so as to satisfy the Gateway Criteria) would be against his welfare interests. As such, Keehan J granted the local authority leave to apply for an order under the inherent jurisdiction and authorised the deprivation of AB's liberty and set out a number of general principles in relation to this.

Part I asked whether the High Court's granting of section 100, CA 1989 leave was intellectually honest;1 now, the issue is whether Keehan J erred in not applying any principles beyond those required by the leave test. At [34] of AB, Keehan J reasons his finding that the section 100, CA 1989 leave test is met; this is translated in to general principle at [38 8) and 9)]. But – that is it. There is no further principle2 considered or applied.

Importing the Section 25 (1) Criteria in to exercise of inherent jurisdiction
Cases that provide precedent for the deprivation of a child's liberty under the inherent jurisdiction are (as far as I am aware) cases in which section 25, CA 1989 is not prima facie applicable (i.e. cases in which the Gateway Criteria are not satisfied). Examples of this include cases in which a child is (or is thought to be) not looked after in section 25 (1), CA 1989 terms: such as Re B (Secure Accommodation: Inherent Jurisdiction) (No.1) [2013] EWHC 4654 (Fam) (all parties accepted that child not looked after at relevant time); and A Local Authority v S [2015] EWHC 3010 (Fam) (order made in the alternative under the inherent jurisdiction in case child not looked after). And, cases dealing with a different character of accommodation: such as AB [2015] (non-registered children's home); Trust A v X and Others [2015] EWHC 922 (Fam) (a hospital); and Re C (Detention: Medical Treatment) [1997] 2 FLR 180 (a hospital).

In a number of those, the court has explicitly imported the Section 25 (1) Criteria (and other statutory safeguards, including those in the accompanying regulations) in to its exercise of the inherent jurisdiction: Re B (No. 1) [2013], at [20] – [21]; Re B (Secure Accommodation: Inherent Jurisdiction) (No. 2) [2013] EWHC 4566 (Fam), at [21(7)]; and, Re C [1997]; Re C [1997], at 2 FLR 197.

See, for example, the words of Wall J (as he then was) in Re C [1997]: "it seems to me that I should pay careful regard to the scheme which Parliament has laid down under s?25 and that I should not make an order on the facts of this case for C's detention for the purposes of treatment unless I am satisfied that the s 25 criteria are, by analogy to the facts of this case, met. I need to ensure that the rights given to a child who is the subject of an application under s?25 are available, and I should also build into any order equivalent safeguards to those which Parliament has provided for children who are the subjects of applications under s?25", at 197; and HHJ Wildblood QC in Re B (No. 2) [2013]: "It could not be correct for a looser test to be applied under the inherent jurisdiction than that which is applicable where section 25 directly arises as a result of the child being looked after by a local authority", at [21(7)].

This is and must be, it is suggested, the correct approach: whichever jurisdictional route is used to authorise the deprivation of a child's liberty, the safeguards (which must properly be understood as safeguards against the remedy sought – deprivation; and not safeguards against the route itself) apply with equal force.

Further, if this is the correct approach in cases in which section 25, CA 1989 is not prima facie applicable, it must also (and indeed, one may think there is even greater call for it to) be the case in cases in which the Gateway Criteria are met (i.e. where, although the Gateway Criteria are met, the court does not find the Section 25 (1) Criteria met, and so turns to the inherent jurisdiction to deprive the child of her liberty). Were this not the case: a local authority would need only move a child from a registered secure children's home to a different character of liberty-depriving accommodation so as to evade the Section 25 (1) Criteria.

The corollary of this, of course, is that any attempt to deploy the inherent jurisdiction in these terms in circumstances in which section 25, CA 1989 is prima facie applicable is not only (arguably) futile in jurisdictional terms (see Part I) but also (inevitably) futile in substantive terms. That is illustrated by the simple and circular logic that consumes such an approach: the Section 25 (1) Criteria are not met; the court cannot make a secure accommodation order; the court turns to the inherent jurisdiction; the inherent jurisdiction demands that the Section 25 (1) Criteria are applied by analogy; the Section 25 (1) Criteria are not met…

And – what about best interests and articles 5 and 8, ECHR?
The exercise of the inherent jurisdiction3 in relation to a child must be conducted in accordance with her best interests: Re C [1997], at 2 FLR 189.

Further, the deprivation of a child's liberty engages her articles 5 and 8, ECHR rights. As such, that deprivation must fall within the exceptions at article 5(1)(d) and article 8(2). As a reminder:

Article 5, "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…" and, at article 5 (1) (d), "the detention of a minor by lawful order for the purpose of educational supervision [to be interpreted widely: Re K (Secure Accommodation: Right to Liberty) [2001] 1 FLR 526, at 1 FLR 557] or his lawful detention for the purpose of bringing him before the competent legal authority".

And, article 8, "Everyone has the right to respect for his private and family life…" and, article 8 (2), that "There shall be no interference by a public authority with the exercise of this right except… for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

The fundamental importance of articles 5 and 8, ECHR is reiterated in the case law; in particular that any deprivation of liberty must be lawful, necessary and proportionate. To turn back to the words of HHJ Wildblood QC in Re B (No.2) [2013]: "Decisions about the deprivation of liberty are of such fundamental importance that they can be no softening or departure from the underlying legal principles of Article 5 and, therefore, I wish to stress that I am not approaching this under some general umbrella of what I think is best for C without having firm regard to the provisions of the article and the provisions of Article 8", at [23].

Hold on…
The above analysis (i.e. that the Section 25 (1) Criteria, best interests and articles 5 and 8, ECHR all apply) demands that the various principles are capable of sitting together during the exercise of the inherent jurisdiction. Are they?

As a starting point, I suggest that articles 5 and 8, ECHR do not quarrel with best interests. Indeed, one might say, far from it: they are among the most fundamental aspects of welfare and make up two of the pillars on which best interests is built.

The relationship between the Section 25 (1) Criteria and articles 5 and 8, ECHR too is smooth: it is settled law that the Section 25 (1) Criteria, when considered alongside the secure accommodation regulations, are articles 5 and 8, ECHR compliant. (And, therefore, if the Section 25 (1) Criteria and accompanying regulations were thought not to apply by analogy to the inherent jurisdiction, there would need to be a different articles 5 and 8, ECHR-compliant mechanism to replace them.)

The friction, perhaps, is between the paramountcy of best interests and the Section 25 (1) Criteria. In particular, the alternative clause in the injury criterion (i.e. "likely to injure… other persons") section 25 (1)(b), CA 1989) focusses on protecting persons other than the subject child and therefore is, at first glance, a consideration beyond the subject child's best interests. The answer may be to say that the subject child's injuring of another cannot be in the subject child's best interests, not least given the consequences that may flow from that act of injuring.

A final thought
If we are to deprive children of their liberty under the inherent jurisdiction, either in circumstances in which section 25, CA 1989 is prima facie applicable or in circumstances in which it is not, we require clarity as to the principles in accordance with which that inherent jurisdiction will be exercised. This may be, as suggested, through a combination of best interests, articles 5 and 8, ECHR and the importing of the Section 25 (1) Criteria by analogy; or, it may be by way of a similar (but different) articles 5 and 8, ECHR-compliant process.

For now however – our Minotaur roams: unshackled and wild. We await our hero.

For a step-by-step guide as to whether to use section 25 of the Children Act 1989 or the inherent jurisdiction in relation to secure accommodation, see Ariadne's Golden Thread: Placing Children in Secure Accommodation.

For an article examining whether, and if so on what basis, the court can place in secure accommodation a child who has celebrated his 16th birthday, see Daedalus's Twist? Secure Accommodation after a Child's 16th Birthday.

1 I repeat that, in AB, all parties were in agreement that Keehan J's decision was sensitive to and in the best interests of the vulnerable young man with whom the High Court was concerned.
2 With the exception of a reference to best interests that appears, on one reading at least, to be anterior justification for the finding that AB would likely suffer significant harm.
3 This is in contrast to section 25, CA 1989, which falls under Part 3 of CA 1989 and is therefore concerned with the general duty of a local authority to safeguard and promote a child's welfare. There, the child's welfare is not paramount, although it will weigh heavily.