Three members of 11KBW in important Court of Appeal case on deprivation of liberty

Cases

The Court of Appeal has just handed down judgment in A Mother v Derby CC [2021] EWCA Civ 1867, which is the latest case in the ongoing issue of the use of the inherent jurisdiction to authorize the deprivation of liberty (“DOL”) of a child other than in a registered children’s home.

Jonathan Auburn QC and Ruth Kennedy acted for the Secretary of State for Education. Joanne Clement acted for Ofsted

On 9 September 2021, the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 came into force amending the Care Planning, Placement and Case Review (England) Regulations 2010. The effect of the amendment (Regulation 27A) was to make it unlawful for a local authority to place a looked after child, under the age of 16, in accommodation other than those specifically set out in legislation.

The central question for the Court of Appeal was whether it was still open to the High Court, after the amendments, to authorize a DOL for children under 16, where the placement is not within the statutory scheme. At first instance Mr Justice MacDonald held that the inherent jurisdiction could still be used for such a purpose. On appeal it was argued that, because the placement was unlawful under the statutory scheme, it could not be compliant with Article 5 ECHR.

The Court of Appeal held that the amended statutory scheme did not alter the position from Re T [2021] UKSC 35, and was within its scope. Section 22C(6)(d) CA 1989 did not cover an unregistered children’s home. As a result, the recent amendments had no relevance to placement in an unregistered children’s home, which had never qualified as “other arrangements”. The Supreme Court in Re T had held that the use of the inherent jurisdiction was permissible in the existence of “imperative considerations of necessity”. The same principles applied to the cases before the Court, and they were bound by the Supreme Court’s decision.

As a result, the appeal failed. The Supreme Court had already held that the exercise of the jurisdiction of the High Court in cases such as this was lawful under common law. The Court of Appeal held that, therefore, the exercise of the jurisdiction is “prescribed by law” and an order made by the High Court authorizing DOL was a “lawful order” of the type required by Article 5(1)(d) ECHR.