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Inherent jurisdiction and deprivation of children’s liberty

President seeks to clarify the law

There has been increasing concern amongst judges, practitioners and academics about the use of the inherent jurisdiction to authorise the deprivation of children's liberty in circumstances in which, but for a lack of resources, a secure accommodation order would be applied for.

On 4 October 2018, the Court of Appeal handed down judgments in the case of T (A Child) [2018] EWCA Civ 2136. McFarlane P – giving the lead judgment – has sought to clarify the law and has drawn to the government's attention what the President considers to be a "fundamentally unsatisfactory" (para 88) situation.

In a lengthy lead judgment, dismissing the appeals mounted on behalf of the subject child, McFarlane P held:

  1. It would be difficult to argue against the use of the inherent jurisdiction for the class of children for whom a lack of resources means that otherwise-appropriate secure accommodation is not available (para 6).
  2. Lack of consent (more fully, the subjective component of a lack of valid consent, from the ECtHR case of Storck v Germany (2005) 34 EHRR 6 is not a jurisdictional pre-requisite to the making of an order authorising the deprivation of a child's liberty (paras 68 – 82).
  3. Mostyn J's decisions to authorise the deprivation of the subject child's liberty were not 'wrong', notwithstanding the subject child's apparent consent to her confinement (para 86).
  4. Indeed, the consent of a subject child is not capable of authorising the placement of that child in "the equivalent of secure accommodation". Nor is the consent of the relevant local authority (para 79).
  5. The terms of s 25, CA 1989 should be treated as being equally applicable to cases in which a local authority is placing or is proposing to place a child in "the equivalent of secure accommodation" (para 79).

The Court of Appeal has sent its judgments to the Secretary of State for Education, the Secretary of State for Justice, the Chair of the Education Select Committee, the Chair of the Justice Select Committee, the Welsh Government and the Commissioner for Children.

For the judgment, click here.

Alex Laing, barrister, Coram Chambers, who appeared for the appellant.