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

Alex Laing, barrister of Coram Chambers, considers the interrelationship of the inherent jurisdiction and secure accommodation.


Alex Laing
, barrister of Coram Chambers

In two earlier articles (Ariadne's Golden Thread and Daedalus's Twist), our Cretan protagonists explored, respectively, a route map for navigating the secure accommodation labyrinth and a twist in the maze concerning the placing in secure accommodation of children who have turned 16.

Enshrouded deep in the legal shadows – and increasingly showing its teeth – lurks the inherent jurisdiction. The interrelationship between the inherent jurisdiction and section 25, CA 1989 is our very own Minotaur; the difficulty caused by it especially acute in circumstances in which section 25, CA 1989 is prima facie applicable but neither limb of the test set out in section 25 (1), CA 1989 is satisfied.

This article comes in two parts. Part I addresses 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?

Part II, to follow, discusses more broadly 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?

Gateway Criteria; Section 25 (1) Criteria
It is helpful to think of section 25, CA 1989 as having three gateway criteria ("the Gateway Criteria") that determine its applicability to a given case:

a. The child must be looked after (that is to say, (1) accommodated (for at least 24 hours) under section 20, excluding those over 16 and accommodated in a community home under section 20 (5); or, (2) subject to a care order): section 25 (1), CA 1989;

b. The proposed accommodation must be provided for the purpose of restricting liberty (i.e. secure accommodation): section 25 (1), CA 1989;

c. The proposed accommodation must be a children's home approved by the Secretary of State: regulation 3 of the Children (Secure Accommodation) Regulations 1991 as amended by regulation 3 of Children (Secure Accommodation) Amendment Regulations 1995.

On satisfaction of the Gateway Criteria (i.e. in cases in which section 25, CA 1989 is prima facie applicable) the court applies the section 25 (1) criteria ("the Section 25 (1) Criteria"). If the Section 25 (1) Criteria are not met, the child cannot be kept in secure accommodation; if they are, the court must make a secure accommodation order: section 25 (4), CA 1989.

The Section 25 (1) Criteria are disjunctive. They are:

a. A history of absconding, a likelihood of absconding and a likelihood of suffering significant harm on absconding ("the absconding criteria"): section 25 (1) (a), CA 1989; or

b. A likelihood of injury to herself or others if kept in any other description of accommodation ("the injury criterion"): section 25 (1) (b), CA 1989.

At this stage, it should be noted that: the absconding criteria are in terms that the likelihood of absconding is "from any other description of accommodation" (my emphasis): section 25 (1)(a)(i), CA 1989; and, the injury criterion is in terms that the likelihood of injury is "in any other description of accommodation" (my emphasis): section 25 (1)(b), CA 1989.

A particular difficulty for local authorities and, by extension, for courts is the class of case in which the Gateway Criteria are satisfied but the Section 25 (1) Criteria are not. This is likely to arise through a lack of resources: whilst the child's needs do not require that she is in secure accommodation, there is no available, non-secure placement in which she will be safe.

In these difficult cases, the court often turns to the inherent jurisdiction. The question for Part I is whether this is correct.

Leave under section 100 (4) – (5), CA 1989
A local authority cannot apply for any exercise of the court's inherent jurisdiction unless it obtains the leave of the court: section 100 (3), CA 1989.  Leave can only be granted if: (a) the result which the local authority wishes to achieve cannot be achieved through the making of any non-inherent jurisdiction order for which the local authority is entitled to apply: section 100 (4) – (5), CA 1989; and, (b) there is reasonable cause to believe that a child is likely to suffer significant harm if inherent jurisdiction is not exercised: section 100 (4), CA 1989.

In circumstances in which the Gateway Criteria apply and the Section 25 (1) Criteria are not satisfied, the answer appears 1 to start and end with (a): a secure accommodation order is one made under statute for which a local authority can apply – therefore, leave cannot be granted to apply under the inherent jurisdiction.

As an aside, where neither the Gateway Criteria apply nor the Section 25 (1) Criteria are satisfied, it is arguable that (a) is satisfied.  We turn, then, to (b) – and, the case of AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam) 2.

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.

Limiting ourselves to the issue of section 100 (4) – (5), CA 1989 leave, we might well question the justification for finding that (b) is met and the general principle on which it appears to be based. In short: Keehan J explains that where a case does not satisfy both the Gateway and Section 25 (1) Criteria, the inherent jurisdiction leave test is "likely to be crossed on the basis that any unlawful deprivation of liberty is likely to constitute significant harm": para 38 (8) – (9). The criticism of this is simple and compelling: the fact that the safeguards for depriving a child of her liberty are not met and that any deprivation of liberty would therefore be unlawful is not (and, one may think, is far from) a reason for giving leave for that child to be deprived of her liberty without those safeguards.

Declining to exercise the inherent jurisdiction
Returning to the scenario in which in which the Gateway Criteria apply and the Section 25 (1) Criteria are not satisfied, and in the event that a court finds, say, that the lack of an available, non-secure placement in which a child will be safe is sufficient so as to satisfy the section 100 (4) – (5), CA 1989 test for leave, we must ask: should the inherent jurisdiction be exercised?

Depending on one's view, that question can be re-phrased as follows: does the court have the power, in circumstances in which section 25, CA 1989 is applicable (i.e. the Gateway Criteria are met) but the Section 25 (1) Criteria now not met, to evade the Section 25 (1) Criteria and fall back on its inherent jurisdiction? Or, can a court benignly imprison a child when the statutory safeguards for doing so are not satisfied?

The argument put forward by local authorities in this situation is and will be that there is no available alternative, therefore the deprivation of the child's liberty must be effected, and it must be effected under the inherent jurisdiction. The argument against will be that to make the same substantive order by a route that evades the safeguards is anathema to the statutory scheme – and that, instead, local authorities have no choice but to think creatively about placements for children and the bespoke creation of them (see: Re SS (Secure Accommodation) [2014] EWHC 4436 (Fam), [2015] 2 FLR 1358, at para 15).

In considering the effect of this 'no available alternative' argument on the test being applied to the deprivation of a child's liberty (of which more in Part II), one can readily point out the criticisms of such an approach. These include:

a. It dilutes the applicable test: the bars and safeguards (Section 25 (1) Criteria, regulatory regime and articles 5 and 8, ECHR) that patrol the placing of a child in secure accommodation are stripped away – it becomes a question of resources;

b. It makes the applicable test a variable one. Take Child A and Child B, identical twins, same facts, same needs, one available non-secure placement: whilst Child A, who gets to court first, is placed in non-secure accommodation, Child B, who arrives 15 minutes later, is deprived of her liberty;

c. A diluted and variable test begs the question: what, in fact, is the substance of this test?

d. Such an approach goes against Government guidance. See, for example, The Children Act 1989, Guidance and Regulations, Vol. 1, Department for Children, Schools and Families, 2008, Chapter 5, at 5.3 3: "A decision to place a child in secure accommodation must be based on the assessed needs of the child at the relevant time and never because no other placement is available, because of inadequacies of staffing…" (my emphasis);

e. When we say 'no available alternative', who is judging this? Power appears to be divested from the court to the local authority; a local authority might be thought to be presenting a court with a fait accompli.

One might go further still and draw an analogy between this approach and the making of care orders: it is akin to a court finding that the section 31, CA 1989 threshold is not met 4  – but anyway proceeding to make a care order.

There is, therefore, a strong argument that a court should decline to exercise its discretion to deprive a child of her liberty under the inherent jurisdiction in circumstances in which the Gateway Criteria are met but the Section 25 (1) Criteria are not satisfied.

A final thought
Relying on AB, of course, as authority for a court's ability to use the inherent jurisdiction in this scenario endorses a (dangerous) proposition: on the making of a secure accommodation order, the relevant test mutates so that, even when the Section 25 (1) Criteria are not satisfied, a child can continue to be deprived of her liberty under the inherent jurisdiction where a lack of resources leads a court to the conclusion that the section 100 (4) – (5), CA 1989 leave test is met. A moment's reflection suffices to digest the radical departure from the statutory scheme that this proposition demands: a short-term secure accommodation order could be made in relation to a child with a learning disability; after that short period, the presentation of the child improves to such an extent that the Section 25 (1) Criteria are no longer met; the statutory scheme would demand that, at that point, the child be released from the placement in which she is being deprived of her liberty; nevertheless, because of a lack of suitable, alternative placements (with the search for and judgment of those placements undertaken by a resource-poor local authority), the child continues to be deprived of her liberty under the inherent jurisdiction. To many, this is the (benign) imprisonment of children – and, after all, in the words of Holman J, "liberty is zealously protected"  – driven by money.

Consideration of the extent to which we should let this Minotaur roam (or the principles that we should apply to it), is set out in And There Lurks the Minotaur: The Interrelationship Between the Inherent Jurisdiction and Section 25, CA 1989: Part II.

1 Given the wording of section 25 (1)(a)(i) and (1)(b), CA 1989. As far as I am aware, no appellate court has dealt with the issue of the proper construction of these sub-sections.
2 I return in more detail to this case and the question as to whether it was correct in law in Part II.
3 Guidance to local authorities under section 7 of the Local Authority Services Act 1970 which, in broad terms, should be complied with by local authorities when exercising their functions.
4 Although note that the test for leave at section 100 (4), CA 1989 is in the same terms as the interim threshold test at section 38, CA 1989.