Update: deprivation of liberty, looked after children under 16 and unregulated placements

With reports of the increasing number of vulnerable children in England being placed in unregulated placements under deprivation of liberty orders, we report on a recent decision where the High Court considered whether the court can under its Inherent Jurisdiction authorise a DoL in an unregistered placement where the provider cannot or will not comply with the relevant Practice Guidance for those placements.

The issue of whether the High Court can use its Inherent Jurisdiction to authorise the deprivation of liberty of a child under 16 where the placement is unregulated according to the new regulations (The Care Planning and Case Review (England) (Amendment) Regulations 2021) which came into force on 9 September 2021 was addressed in the important case of Tameside MBC v AM & Ors (DOL Orders for Children Under 16).  

It concluded that the High Court could declare that a deprivation of liberty in an unregulated placement was capable of being lawful if there was no alternative. However, the issue is currently being considered by the Court of Appeal in hearings listed for 16 and 17 November 2021.

Whilst practitioners await the Court of Appeal’s decision, it is worth noting the decision in Derby CC v CK and Ors (Compliance with DOL Practice Guidance) [2021] concerning the range of circumstances in which the Inherent Jurisdiction may be applied. Specifically, whether, given the central role of the Practice Guidance in Tameside, it remains open to the court to exercise its Inherent Jurisdiction in cases where a placement either will not or cannot comply with the Practice Guidance.

In short, Mr Justice MacDonald concluded at paragraph 94:

“…whilst accepting that an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, I am satisfied that the court should not ordinarily countenance the exercise of the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply expeditiously for registration as mandated by law.”

Comment

It will be interesting to see the outcome of the appeal on the original point of the court’s Inherent Jurisdiction. That aside, Mr Justice McDonald acknowledges in his decision the acute shortage of provision for secure placements of children and adolescents (see our earlier blog posting on the Competition and Markets Authority report here) and reflects that the Practice Guidance was promulgated by the President of the Family Division to assist in addressing an urgent and acute problem borne of this lack of resources. He explains, “On the one hand, failure to follow the Practice Guidance will deprive children of the regulatory protection Parliament has deemed they should benefit from. But, in the context of the continuing and acute shortage of appropriate resources, following the Practice Guidance can risk a vulnerable looked after child having nowhere to go.”

If you have any questions relating to any of the issues raised please do not hesitate to contact Neil Ward.