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Home > Judgments

Tameside MBC v AM and others [2021] EWHC 2472 (Fam)

Judgment of MacDonald J confirming that, following amended regulations prohibiting the placement of looked after children under 16 in unregulated placements, it remains open to the High Court to authorise, under its inherent jurisdiction, the deprivation of liberty of children in such placements, provided that procedural safeguards are complied with.

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Issues:

1. Does it remain lawful for the court to authorise deprivations of liberty for children under 16 in unregulated placements after changes to regulations prohibited local authorities from using such placements? [1]

2. If so, is the court's power to authorise deprivation of liberty limited to circumstances where there is no alternative regulated placement available or is it exercisable in all circumstances where authorisation of deprivation of liberty in the unlawful placement is considered necessary to protect the child's welfare? [28]

3. The court declined to address a third issue, not raised by the facts of the cases under consideration, namely whether a local authority retains the power to lawfully place a child in an unregistered children's home, following the coming into force of the amended regulations, given its purported focus on unregulated rather than unregistered placements [3]-[4];[29].


Context

The court was concerned with four cases (the background to each of which is summarised at 8-25]), all involving children currently placed in 'unregulated placements' and subject to restrictions upon their liberty.

The statutory scheme, including its background and purpose, is set out fully at [30]-[46]. The distinction between the shorthand terms 'unregulated placements' and 'unregistered placements' is noted [39]-[40]: unregulated placements are those not required to register with Ofsted because they are not categorised as children's homes (including independent and semi-independent settings for older children); unregistered placements are those (including children's homes) which are required to register but have not done so.

The category of accommodation in issue here was the former: 'other arrangements which comply with any regulations made for the purposes of this section' under Children Act 1989 s. 22C(6)(d) (distinct from children's homes provided for by s. 22C(6)(c)). The 'regulations' to be complied with were the Care Planning, Placement and Case Reviews (England) Regulations 2010, amended with effect from 9 September 2021 to prohibit placements under s. 22C(6)(d) for children under 16 which did not fall within a narrow list in the new r. 27A. The intention was to 'ensure that looked after children under 16 are placed in children's homes or foster care instead of unregulated settings', settings which included the semi-independent/independent placements considered more appropriate for older children [41].

Local authorities were granted a 6-month grace period to move children from unregulated placements into registered children's homes or foster care [43]. The absence of resources to achieve this had been the subject of recent judicial comment [45] to which MacDonald J adds, observing that local authorities do not resort to (now prohibited) unregulated placements out of choice, but necessity [92]-[98]. The resources issue also gave rise to the first issue: whether the court could continue to authorise deprivations of liberty of under-16s in the unregulated placements which inevitably remained in use, notwithstanding the amended regulations under which they were now prohibited.

Issue one — is the authorisation of deprivation of liberty of children in prohibited placements lawful?

The local authorities, children's guardians, Secretary of State for Education and Ofsted all submitted that the answer to this question was 'yes'. The court agreed, because:

1. The inherent jurisdiction, as emphasised recently in Re T [2021] UKSC 35, existed to enable the court to protect children from harm. The Supreme Court had reiterated that, particularly in this context, such a power would be restricted only where Parliament had clearly intended it. No such legislative intent was apparent from the amendments to the regulations in question; the regulations proscribed the powers of local authorities to use certain placements, not the powers of the court to authorise deprivations of liberty within them, where there was no alternative and where the child would come to grave harm otherwise [69]-[73].

2. The court was not authorising a placement which the regulations now rendered unlawful, nor was it the court that deprived the child of his/her liberty therein. The court merely authorised the local authority to deprive a child of their liberty should it consider this necessary. The issue of the lawfulness of the placement remained one solely for the local authority [74]-[75].*

3. The fact that a local authority may be using an unlawful placement did not relieve the court of its 'positive operational duty' under the ECHR to authorise a deprivation of liberty where required to avoid a real and immediate risk to life (Art. 2) or to ensure the child was not subjected to torture or inhuman or degrading treatment (Art. 3) [76]-[77].

Issue two — what are the conditions for exercise of the power?

The (contested) secondary issue was whether the power to authorise deprivations of liberty in unregulated placements was — in light of Re T [2021] UKSC 35 and the Supreme Court's emphasis of the need for 'conditions of imperative necessity' for authorisation of deprivations of liberty where s.25 secure accommodation was unavailable — limited to situations where there is no alternative lawful placement available capable of meeting the child's needs (as submitted by Ofsted and the Secretary of State), or whether it was available more broadly whenever an unregulated placement is necessary to protect the child's welfare (as submitted by the local authorities) [28];[78]-[82].

MacDonald J accepted that the court must adopt a rigorous approach when making decisions which gave rise to the potential for placements which Parliament had decided were unlawful and observed that ordinarily the unavailability of a regulated placement would constitute the conditions of imperative necessity in these cases [84]-[85]. However, it was possible to envisage circumstances where other conditions prevailed: for example, the court might authorise deprivation of liberty within an unregulated placement which was shortly to be regularised, despite a regulated alternative being available, where a temporary move to that placement would cause significant psychological harm. Each case will turn on its own facts, engaging an overarching best interests analysis, and it was neither desirable nor appropriate to attempt a definitive list of what may constitute an imperative consideration of necessity [86].

Procedure

Rigorous procedural safeguards were necessary in cases of unregulated placements, as set out in the President's Practice Guidance of November 2019 ('Placements in unregistered children's homes in England or unregistered care home services in Wales') which must be read and applied in full (summarised in list form at [88]).

Finally, the approach to be taken in cases such as this is distilled into five principles at [90].

*While the issue for determination related to the powers of the court, not the local authority, it was conceded in submissions by the Secretary of State for Education that, in respect of unregulated placements after 9 September 2021, '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' [76].

Case summary by Iain Large, Barrister, St John's Chambers

For full case, please see BAILII