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Derby CC v CK and Ors (Compliance with DOL Practice Guidance) [2021] EWHC 2931 (Fam)

Decision by MacDonald J on the use of inherent jurisdiction to authorise the deprivation of a child’s liberty in an unregistered placement.

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The court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the President's Practice Guidance to apply for registration.

Background

In Tameside MBC v AM & Ors (DOL Orders for Children Under 16) [2021] EWHC 2472 (Fam) , MacDonald J decided that it remains open to the High Court to authorise, under its inherent jurisdiction, the deprivation of liberty of a child under the age of 16 where the placement is prohibited by the terms of the statutory scheme, subject always to the rigorous application of the President's Guidance of November 2019 and the addendum dated December 2020.   In this case, MacDonald J considered the question of whether it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the Guidance. 

MacDonald J had before him 3 cases (one of which was also in Tameside MBC) concerning young people under 16 with a very high level of need.  Each was placed in an unregistered placement in circumstances where an application for registration had not yet been made (and was not imminent) or where an application would not be made (such as placement in a holiday park). The merits of the applications will be determined separately.

Legal Framework

The judgment sets out the statutory and regulatory framework in detail.  Terminology is clarified: an 'unregulated' placement is one which does not constitute a children's home for the purposes of s.1(2) of the Care Standards Act 2000 and therefore does not have to be registered. An 'unregistered' placement constitutes a children's home but has not been registered in accordance with the requirement under the Act.

There is discussion of the status of the President's Guidance, as non-statutory guidance, particularly in light of its treatment in Re T [2021] UKSC 35.  The focus of the Guidance is to ensure that where a court authorises placement in an unregistered unit, steps are taken immediately by those operating the unit to apply for registration so the placement will become regulated within the statutory scheme as soon as possible. 

The Secretary of State and Ofsted submitted that Re T set categorical limits on the exercise of the inherent jurisdiction to authorise the deprivation of liberty of children in unregistered placements, one of those limits being "strict compliance" with the Practice Guidance. The local authorities submitted that compliance with the Guidance was not a condition precedent to the exercise of the inherent jurisdiction.

MacDonald J reiterates the principles and the seminal importance of the existence of the inherent jurisdiction of the High Court as a protective bulwark for children where no other option is available. It is the ultimate safety net.

Discussion

MacDonald J noted the absence of a  concerted effort by those responsible to remedy the current acute shortage of suitable provision. Lack of resources underlies these cases. It was not for the court to arbitrate the respective financial responsibility of central and local government.  However, MacDonald J noted the obligations upon the state as identified in Boumar v Belgium (1989) 11 EHRR 1.

The President's Guidance requires local authorities and providers to comply in a timely fashion with a pre-existing mandatory obligation. Failure to follow the Guidance deprives young people of the protection determined by Parliament, such as quality standards and inspection. The court is not in a position to replicate the rigour of the regulatory regime that applies to registered placements. However, following the Guidance may risk a vulnerable child having nowhere to go. 

The deployment of the inherent jurisdiction is only effective if it safeguards and promotes children's welfare. Compliance with the Guidance is central to the safe deployment of the jurisdiction in a manner consistent with Art 5.  Where an unregistered placement makes clear that it will not or cannot comply with the Guidance, and in particular the requirement to issue an expeditious registration application, a number of factors militate against the deprivation of the child's liberty in such a placement being in the child's best interests.

MacDonald J makes some observations on categories of placements that will not apply for registration.  It may be understandable if a provider does not ordinarily make such provision, such as a private landlord or holiday park owner. However, it is placements of this kind which are most likely to be wholly unsuitable.  They expose the child to the double deficit in the form of a sub-optimal placement that is also outwith the statutory regulatory regime designed to safeguard him or her.

Decision

Compliance or non-compliance with the Guidance is not determinative of the existence of the court's substantive jurisdiction. An unwillingness or inability to comply with the terms of the Guidance does not act per se to oust the inherent jurisdiction of the High Court to authorise the deprivation of a child's liberty in an unregistered placement confirmed in Re T.  The question for the court in such circumstances is whether that jurisdiction should be exercised where there has been non-compliance with the Practice Guidance.

Unwillingness or inability to comply with the guidance will be a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction. Each case will turn on its own facts.  However, the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Guidance to apply for registration.

Where a provider refuses to apply for registration, it is unlikely the court will conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child with that provider is in the child's best interests. In such circumstances, the court may be required to make a very short order (i.e. days not weeks) to hold the ring whilst alternative arrangements are put in place. This will particularly be the case where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe and the unregistered placement is the only means of achieving this. The authorisation given for a deprivation of liberty in that situation should be for the least time possible. The court should set a timetable for the identification of a placement that is registered (or willing to apply), registration of the placement being essential to ensuring that the child is kept safe in the medium and long term.

Case summary by Victoria Roberts, Barrister, Coram Chambers

For full case, please see BAILII