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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A Mother v Derby City Council & Anor [2021] EWCA Civ 1867 (07 December 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1867.html Cite as: [2022] 2 WLR 893, [2022] Fam 351, [2021] WLR(D) 630, [2021] EWCA Civ 1867 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Hon Mr Justice MacDonald
FD21P00578
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BAKER
and
LADY JUSTICE SIMLER
____________________
A Mother |
Appellant |
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- and – |
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Derby City Council (1) CK (by her children's guardian) (2) |
Respondents |
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- and – |
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Secretary of State for Education (1) Ofsted (2) Tameside Metropolitan Borough Council (3) |
Interveners |
____________________
Lorraine Cavanagh QC and Shaun Spencer (instructed by Derby CC and Tameside MBC) for the First Respondent and Third Intervenor
Brendan Roche QC and Kathleen Hayter (instructed by Kieran Clark Green) for the Second Respondent
Jonathan Auburn QC and Ruth Kennedy (instructed by Treasury Solicitor) for the First Intervenor
Joanne Clement (instructed by Ofsted) for the Second Intervenor
Hearing date : 16 and 17 November 2021
____________________
Crown Copyright ©
Sir Andrew McFarlane, President of the Family Division :
"The question of law before the court is whether 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 in which the restrictions that are the subject of that authorisation will be applied is prohibited by the terms of the amended statutory scheme."
The Appeal
Ground 1: With the coming into force of amendments to the Care, Planning, Placement and Case Review (England) Regulations 2010 on 9 September 2021, a placement of a child under the age of 16 in an unregistered children's home was unlawful for the purposes of domestic law and it was therefore not open to the court to authorise the deprivation of liberty as being in accordance with ECHR, Art 5;
Ground 2: In circumstances where Parliament had legislated, by way of the amended regulation, to prohibit placement of a child under the age of 16 in an unregistered children's home, the court could not authorise a deprivation of liberty within that placement under the inherent jurisdiction without cutting, impermissibly, across the statutory scheme.
The Statutory Scheme
"22C Ways in which looked after children are to be accommodated and maintained
(1) This section applies where a local authority are looking after a child ("C").
(2) The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to subsection (4)).
(3) A person ("P") falls within this subsection if—
(a) P is a parent of C;
(b) P is not a parent of C but has parental responsibility for C; or
(c) in a case where C is in the care of the local authority and there was a child arrangements order in force with respect to C immediately before the care order was made, P was a person named in the child arrangements order as a person with whom C was to live.
(4) Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so—
(a) would not be consistent with C's welfare; or
(b) would not be reasonably practicable.
(5) If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.
(6) In subsection (5) " placement " means—
(a) placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;
(b) placement with a local authority foster parent who does not fall within paragraph (a);
(c) placement in a children's home in respect of which a person is registered under Part 2 of the Care Standards Act 2000 or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016; or
(d) subject to section 22D, placement in accordance with other arrangements which comply with any regulations made for the purposes of this section.
(7) In determining the most appropriate placement for C, the local authority must, subject to subsection (9B) and the other provisions of this Part (in particular, to their duties under section 22)—
(a) give preference to a placement falling within paragraph (a) of subsection (6) over placements falling within the other paragraphs of that subsection;
(b) comply, so far as is reasonably practicable in all the circumstances of C's case, with the requirements of subsection (8); and
(c) comply with subsection (9) unless that is not reasonably practicable.
(8) The local authority must ensure that the placement is such that—
(a) it allows C to live near C's home;
(b) it does not disrupt C's education or training;
(c) if C has a sibling for whom the local authority are also providing accommodation, it enables C and the sibling to live together;
(d) if C is disabled, the accommodation provided is suitable to C's particular needs.
(9) The placement must be such that C is provided with accommodation within the local authority's area.
(9A) Subsection (9B) applies (subject to subsection (9C)) where the local authority—
(a) are considering adoption for C, or
(b) are satisfied that C ought to be placed for adoption but are not authorised under section 19 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.
(9B) Where this subsection applies—
(a) subsections (7) to (9) do not apply to the local authority,
(b) the local authority must consider placing C with an individual within subsection (6)(a), and
(c) where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter.
(9C) Subsection (9B) does not apply where the local authority have applied for a placement order under section 21 of the Adoption and Children Act 2002 in respect of C and the application has been refused.
(10) The local authority may determine—
(a) the terms of any arrangements they make under subsection (2) in relation to C (including terms as to payment); and
(b) the terms on which they place C with a local authority foster parent (including terms as to payment but subject to any order made under section 49 of the Children Act 2004).
(11) The Secretary of State may make regulations for, and in connection with, the purposes of this section.
(12) For the meaning of "local authority foster parent" see section 105(1)."
"27. Before placing C in accommodation in an unregulated setting under s 22C(6)(d), the responsible authority must:
(a) be satisfied that the accommodation is suitable for C, having regard to the matters set out in Schedule 6,
(b) unless it is not reasonably practicable, arrange for C to visit the accommodation, and
(c) inform the IRO."
"(a) be satisfied that the accommodation is suitable for C and, where that accommodation is not specified in Regulation 27A, must have regard to the matters set out in Schedule 6."
"27A. A responsible authority may only place a child under 16 in accommodation in accordance with other arrangements under section 22C(6)(d), where the accommodation is—
(a) in relation to placements in England, in—
(i) a care home;
(ii) a hospital as defined in section 275(1) of the National Health Service Act 2006;
(iii) a residential family centre as defined in section 4(2) of the Care Standards Act;
(iv) a school within the meaning of section 4 of the Education Act 1996 providing accommodation that is not registered as a children's home;
(v) an establishment that provides care and accommodation for children as a holiday scheme for disabled children as defined in regulation 2(1) of the Residential Holiday Schemes for Disabled Children (England) Regulations 2013;
(b) in relation to placements in Wales—
(i) accommodation provided by a care home service, within the meaning of paragraph 1(1) of Schedule 1 to the Regulation and Inspection of Social Care (Wales) Act 2016 ("the RISCWA 2016");
(ii) in a hospital as defined in section 206(1) of the National Health Service (Wales) Act 2006;
(iii) accommodation provided by a residential family centre service, within the meaning of paragraph 3(1) of Schedule 1 to the RISCWA 2016;
(iv) in a school within the meaning of section 4 of the Education Act 1996 providing accommodation together with nursing or care that does not constitute a care home service;
(c) in relation to placements in Scotland—
(i) in a residential establishment, within the meaning of paragraph (a) of the definition in section 93(1) of the Children (Scotland) Act 1995;
(ii) accommodation provided by the Scottish public fostering service, within the meaning of paragraph 10(a) of Schedule 12 to the Public Services Reform (Scotland) Act 2010 ("the PSR(S)A 2010");
(iii) accommodation provided by a care home service, within the meaning of paragraph 2 of Schedule 12 to the PSR(S)A 2010;
(iv) accommodation provided by a school care accommodation service, within the meaning given by or under paragraph 3 of Schedule 12 to the PSR(S)A 2010;
(v) in a hospital as defined in section 108(1) of the National Health Service (Scotland) Act 1978."
President's Guidance
"The primary focus of this Guidance is to ensure that, where a court authorises placement in an unregistered unit, steps are immediately taken by those operating the unit to apply for registration (if the unit requires registration) so that the placement will become regulated within the statutory scheme as soon as possible. The Guidance requires the court to monitor the progress of the application for registration and, if registration is not achieved, to review its continued approval of the child's placement in an unregistered unit."
Re T (A Child)
The Appellant's case
(a) The definition of placement in subsection 22C(5), as set out within subsection 22C(6), is a closed list into which a local authority must place a child if arrangements cannot be made under subsection 22C(2);
(b) An unregistered children's home cannot fall within sub-subsection 22C(6)(c) (because that expressly requires registration);
(c) All other classes of accommodation, which do not fall within sub-subsections 22C(6)(a)-(c), fall within the ambit of sub-subsection 22C(6)(d);
(d) Prior to the amendment of regulation 27, placement in an unregulated setting was permissible, subject to satisfying the conditions set out therein;
(e) Either:
(i) Reg 27, prior to amendment, took 'unregulated setting' to include unregistered children's homes; or
(ii) Reg 27 was silent in respect of unregistered children's home;
(f) Thus, placement within an unregistered children's home was either permissible on satisfying the condition under Reg 27 or fell outside the scope of the regulation;
(g) The amended Reg 27, by mirroring the wording of sub-subsection 22C(6)(d) "other arrangements", makes plain it applies to all classes of placement falling within the subsection;
(h) The list at Reg 27A(a) makes plain that "other arrangements" includes placements which go beyond "unregulated settings" (indeed most, if not all, of the placements are in settings which are subject to regulatory schemes) and is itself a closed list;
(i) Having widened the scope of Reg 27, the effect of Reg 27A is that a local authority "may only" place a child who is under 16 in accordance with other arrangements where the setting falls within the list of Reg 27A(a); and
(j) A local authority is thus prohibited from placing a child under 16 in an unregistered children's home, (noting that no equivalent prohibition applies to the placement of a 17 or 18 year old under the amended regulation).
(i) The new regulatory scheme is part of a set of crucial safeguards for children under 16 years old.
(ii) Since the implementation of the new regulation, it has been ultra vires for a local authority to place a child in an unregistered children's home.
(iii) Regs 27 and 27A are part of the safeguards built into the domestic scheme, and the fact that a local authority will now be acting ultra vires is itself a safeguard.
(iv) The ability of the High Court to authorise deprivation of liberty cannot and does not cure the illegality which is at the heart of an unlawful placement as the detention of the child necessarily takes place in the context of that placement.
(v) A distinction is to be made with Re T in that neither Lady Black nor Lord Stephens JSC thought that a local authority would be acting unlawfully in placing a child in an unregistered children's home because it was for the owner of that home to register rather than the authority. That line of argument is no longer available under the new regime.
(vi) Lady Arden JSC thought that the criminal activity was the lack of registration.
(vii) When one of the actors (the local authority or the court), in a case concerning making a placement, makes a placement which is expressly prohibited, the very making of the placement is undertaken in a context which is itself unlawful.
Placement in an unregistered children's home: submissions in response
(a) If a looked after child cannot be accommodated under s 22C(2), then the placement will be under s 22C(5) so that the local authority must place the child in the placement which is, in their opinion, the most appropriate placement available.
(b) The term "placement" is defined in s 22C(6) as meaning one of four categories.
(c) An unregistered children's home cannot fall within any of s 22C(6)(a)-(c).
(d) Neither can an unregistered children's home fall within s 22C(6)(d), because if (d) was sufficiently broad to cover unregistered children's homes, then the local authority would simply be able to bypass the express requirement for registration in (c). Sub-subsection (d) was intended to deal with "other arrangements" which were neither foster placements nor children's homes.
(e) There has, therefore, always been a prohibition, as a matter of domestic law, on placing a child in an unregistered children's home.
(f) The requirement for a children's home to be registered was established by Parliament in the Care Standards Act 2000, some eight years prior to the insertion of s 22C into the CA 1989. It follows that Parliament cannot have intended in 2008, when amending the CA 1989, to establish a provision which permitted a local authority to place a child in an unregistered children's home.
(g) Looked at purposefully, Parliament would never have intended a local authority to make a placement where to do so inevitably involved the manager of a home committing a criminal offence.
(h) There is, therefore, clearly a prohibition on placement in an unregistered children's home, but that prohibition comes from s 22C itself and is not a provision that has been newly introduced by the 2021 Regulations.
(i) If placement in an unregistered children's home has never been within s 22C(6)(d) at all, then the introduction of a new prohibition within the 2021 Regulations, which only deal with sub-subsection (d), does not concern unregistered children's homes and the new regulations are not therefore relevant to such a placement.
"(1) so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
"1. Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(d) The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority."
"the argument that the making of an order, under the inherent jurisdiction, authorising placement in accommodation of this type, would cut unacceptably across the statutory scheme cannot be dismissed easily."
"Cases such as those to which to I have alluded early in this judgment demonstrate, it seems to me, that it is unthinkable that the High Court, with its long established role in protecting children, should have no means to keep these unfortunate children (and others who may be at risk from them) safe from extreme harm, in some cases death. If the local authority cannot apply for an order under section 25 because there is no section 25 compliant secure accommodation available, I would accept that the inherent jurisdiction can, and will have to be, used to fill that gap, without clashing impermissibly with the statutory scheme."
"143 It has to be recognised that when the local authority applies under the inherent jurisdiction for the court to authorise a secure placement which is either not in a registered children's home or is in a children's home that has not been approved for secure accommodation, those placements will not satisfy all the requirements of the regulatory framework."
….
"145 I have been particularly concerned as to whether it is a permissible exercise of the inherent jurisdiction to authorise a local authority to place a child in an unregistered children's home in relation to which a criminal offence would be being committed. Ultimately, however, I recognise that there are cases in which there is absolutely no alternative, and where the child (or someone else) is likely to come to grave harm if the court does not act. I also have to recognise that there other duties in play, in addition to those which prohibit carrying on or managing an unregistered children's home. I gave an idea earlier (para 30 et seq) of the duties placed upon local authorities to protect and support children. How can a local authority fulfil these duties in the problematic cases with which we are concerned if they cannot obtain authorisation from the High Court to place the child in the only placement that is available, and with the ability to impose such restrictions as are required on the child's liberty? It is such imperative considerations of necessity that have led me to conclude that the inherent jurisdiction must be available in these cases. There is presently no alternative that will safeguard the children who require its protection."
"once a court order authorising the deprivation of liberty in this way is made, I do not see how the deprivation can be said to be not in accordance with the domestic law for Article 5 purposes."
"By parity of reasoning with Re T, the fact that the local authority may employ a placement that is unlawful by reference to the amended statutory regime does not relieve the Court from taking the positive operational step of authorising the deprivation of the child's liberty in the placement proposed in order to discharge its duty under Art 2, where there is a real and immediate risk to the life of an identified individual or individuals, or Art 3, where there is actual or constructive knowledge of treatment reaching the minimum level of severity. Further, in circumstances where s 6 of theHuman Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a convention right, where there is an immediate risk of breach of convention rights of the individual child, wherever that risk has come about, then if there is no other alternative the local authority can place the child in an unlawful placement to avoid such a breach. Within this context, and as very properly conceded by the Secretary of State for Education, where it is necessary to place a child in a particular place in order to prevent a breach of that child's convention rights, the local authority has a power, and that power may be a duty, to place the child there. Accordingly, as noted by Lord Stephens in Re T at [177]:
"first there is coherence between the common law and the requirements of Articles 2 and 3 ECHR, so that the outcome under both the common law and under the ECHR where the positive operational duty is engaged will be the same.""
Placement in an unregistered children's home: the Appellant's reply
"182. I read the paragraph I have cited against a later point made in the Secretary of State's submissions that Parliament has now made a Statutory Instrument which as of September 2021 prohibits local authorities in England from placing children under 16 years in an unregistered home. I proceed on the basis that the Secretary of State is not asking the Court to exercise its jurisdiction in this appeal to authorise the placement of a child under that age in an unregistered home. In this judgment, I go no further than the Secretary of State invites us to do in relation to the children of 16 years and above in the passage that I have set out. Any other application will have to be considered on its merits."
"Unregulated accommodation
21. For completeness, the Secretary of State notes that since the hearing of this appeal, the Secretary of State has published a response to the consultation paper described at paragraphs 51-53 of the written case. The Secretary of State decided to ban the placement of children under the age of 16 in unregulated provision. Regulations implementing the ban have been made and will come into force on 9 September 2021. The Secretary of State is also currently consulting on new national minimum standards for unregulated provision."
Discussion
"How can a local authority fulfil these duties in the problematic cases with which we are concerned if they cannot obtain authorisation from the High Court to place the child in the only placement that is available, and with the ability to impose such restrictions as are required on the child's liberty?"
And earlier at paragraph 141:
"Cases such as those to which to I have alluded early in this judgment demonstrate, it seems to me, that it is unthinkable that the High Court, with its long established role in protecting children, should have no means to keep these unfortunate children (and others who may be at risk from them) safe from extreme harm, in some cases death."
Conclusion
LORD JUSTICE BAKER
LADY JUSTICE SIMLER