Yet more inherent jurisdiction and absence of secure beds

The TL;DR background on the history here.

Parliament created in s25 Children Act 1989 a statutory mechanism for Court oversight and sanction of situations in which children who are looked after by Local Authorities have their liberty restricted (generally but not exclusively by locked doors). These are called ‘secure accommodation orders’. Children can only be placed in a s25 secure accommodation in a children’s home specifically approved by Ofsted for that purpose.

There’s a national crisis in secure accommodation beds. Demand is massively outstripping supply, and has been for many years. That led to weird situations where children in Southampton were being put in children’s homes in Scotland… If there’s not an available secure accommodation bed for a child, section 25 doesn’t solve the problem. What you need is more secure beds. BUT if you don’t have them, what then?

This led to a workaround whereby the inherent jurisdiction of the High Court (what some oafish commentators label ‘magical sparkle powers’) were used to authorise a child being placed somewhere where their liberty was restricted but NOT in a children’s home approved by Ofsted for that purpose.

That was a sticking plaster and the High Court has been publishing judgments for at least four years saying that this needs a better solution and shouting it from the rafters.

The issue went up to the Supreme Court, who ruled that the use of inherent jurisdiction for that purpose was lawful.

The Government made some new Regulations – unfortunately, these weren’t ‘we’re building 20 new secure children’s homes’ but instead ‘we’re closing down the bit of the old regulations that allowed Local Authorities to place children in these creative placements, so rather than solving the problem, they instead said “we don’t like the bandaid that the High Court is using as a last resort, so we’re going to make it unlawful for Local Authorities to use band-aids”

There’s now litigation as to whether the High Court can use their inherent jurisdiction to say that THEY the High Court can say that they approve the bandaid (even whilst knowing that this doesn’t allow the Local Authority to use it) – which the High Court has said yes sort of on, and now this particular case grapples with that in more detail. (I think the hope had been that Ofsted would be invited to grant a temporary approval for individual placements)

BEDS NOT BANDAIDS and DOWN WITH THIS SORT OF THING

The TL;DR is so long it needs its own TL;DR

Not enough secure beds, the loophole the High Court worked around was closed, the loophole to work around the closing of the loophole is being litigated about here.

Sorry, this is pretty dull for non-lawyers. Hopefully there will be a less technical case to write about soon.

Derby CC v CK & Ors (Compliance with DOL Practice Guidance) (Rev1) [2021] EWHC 2931 (Fam) (03 November 2021)

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2931.html

This judgment concerns a further question that has now arisen in three cases, including FD21P00578, concerning the range of circumstances in which the jurisdiction I found subsists may be applied.  Namely, whether, given the central role accorded to the President’s Guidance by the Supreme Court in Re T and by this court in Tameside MBC v AM & Ors (DOL Orders for Children Under 16), 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.  The spectrum of the submissions made to the court on this question has been bracketed at one end by the submission of each of the local authorities that the answer to this question is “yes”, and at the other by the submissions of the Secretary of State for Education and Ofsted that the answer to this question is “no”.  Whilst each of the cases before the court concerns a child under the age of 16, the answer to the question posed in this case is applicable to all cases in which the Practice Guidance applies

Do you know, I sort of agree with both sides here. Without an injection of fresh beds, the use of inherent jurisdiction is the only way to find the most vulnerable children that we deal with beds that they need, so yes. But the use of inherent jurisdiction to workaround a bed shortage and sidestep the clear provisions of s25 is wholly wrong in my opinion, so no. Of course, the vexing thing is that the High Court’s middle ground of using inherent jurisdiction whilst shouting for help is the best course of action but the cries for help were heard and not ignored. The High Court were basically saying, “we’re shipwrecked and it is of course wrong to eat the ship’s cat, but if it keeps the crew alive until rescue comes, it is the best of a bad situation’ and the Government are saying ‘we’ve seen your flares and we’ve sent you some leaflets from the RSPCA and PETA rather than a rescue ship’

Anyway, I should also tell you that much like the film Dune, this case does not conclude matters, and there’s going to be a part 2. This Part 1 looks at whether the Court has the legal power to sanction a placement of a child under the inherent jurisdiction where the placement would be unlawful under the new Regulations. Part 2 will look at the circumstances of the individual four cases that have been joined together and what should happen in relation to each.

63. Having regard to the comprehensive submissions made by leading and junior counsel, and the legal provisions set out above, I am satisfied that an unwillingness or inability to comply with the terms of the President’s Practice 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.

64.However, I am equally satisfied that compliance with the Practice Guidance is central to the safe deployment of that jurisdiction and to its deployment in a manner consistent with the imperatives of Art 5. Within this context, 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 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 for registration. My reasons for deciding are as follows.

65. The first point that the court must acknowledge at the outset is that there remains no entirely satisfactory child-centred answer to the question before the court in the absence of a concerted effort by those responsible to remedy the current acute shortage of clinical provision for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive clinical environment, of secure placements and of registered placements. 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. 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. The dilemma is eloquently described in the written submissions of Ms Morgan and Mr Paisley on behalf of QV:

“[37] There is a circularity which is, for the guardian as she contemplates the position for QV in this case and similarly placed young people in others, problematic. It is a circle which is impossible to square: the Guardian all things being equal would make the submission that the solution at which the Court should arrive if it concludes that the relevant body ‘won’t’ apply to register or is failing to comply or is dragging its corporate feet in relation to the President’s Guidance or is quite simply making use of the jurisdiction because it remains available to it and is the path of least resistance would be for the Court to say in effect ‘thus far and no further’ and to bring it to an end. That would be in all likelihood, a way in which the difficulties (which to return to the beginning are difficulties of resource above all else) move from the arena of the court where they should not be and into the province of others. Such an approach however comes at a cost; and the cost is paid by the cohort of vulnerable children and young people for whom there is then nothing in the way of a protective jurisdiction at all. So it is that the Guardian steps away from the otherwise obvious submission that the Court should stand firm; should pursue the reasoning at [62] in Wigan BC v Y to its logical conclusion; should refuse to sanction the jurisdiction. The welfare of this or another subject child is nowhere in that approach never mind paramount or primary.”

Compliance or non-compliance with Practice Guidance is not determinative of the existence of the court’s substantive jurisdiction. This is, I am satisfied, the plain position as a matter of law. The President’s Practice Guidance is non-statutory guidance. The Practice Guidance is not a Practice Direction, and even if it were, the authorities are clear that a Practice Direction cannot change the law. Further, as Lieven J made clear in Birmingham City Council v R & Ors at [19], the President cannot create law by way of issuing guidance. Within this context, I am satisfied that failure to comply with judicial practice guidance cannot oust the inherent jurisdiction of the High Court. The existence of the protective jurisdiction of the court does turn on conformity with a procedural requirement or requirements set out in practice guidance. 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.
It is important at this point to reiterate, as Mr Auburn sought to remind the court at a number of points during the course of his submissions on behalf of the Secretary of State, the question that is before the court. Namely, 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 Practice Guidance. As I have already noted, I am satisfied for the following reasons that, ordinarily, the answer to this question should be ‘no’. There is of course a further question of what is meant by ‘will not or cannot’. I deal with that question in more detail below.

There’s a lot of text here, but the answer to the question

“where the placement proposed is one which will not or cannot comply with the Regulations, can the High Court use their inherent jurisdiction and place there?”

is “ORDINARILY NO”

There’s quite a bit of text on ‘will not or cannot’ – MacDonald J says that it turns on its own facts, but makes some general observations.

80. An unwillingness or inability to apply for registration in accordance with the Practice Guidance does not act to extinguish the court’s inherent jurisdiction. Rather, it borders and curtails the circumstances in which that jurisdiction can be deployed. Within this context, and having regard to the judgment of the Supreme Court in Re T and the matters to which I have referred above, I am satisfied that whilst 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, 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.
81. As noted above, my conclusion invites the question what does “cannot or will not” mean in this context? It is not helpful or appropriate in my judgment to set out an exhaustive list of cases that will fall into one or other of these categories. Each case will turn on its own facts. However, some general observations can be made.
82. A provider that will not apply for registration, in the sense of refusing to do so, notwithstanding the terms of the Practice Guidance is unlikely to be a viable option for meeting the subject child’s best interests. Such a refusal by a provider is, in reality, a statement of intent not to comply with the law put in place by Parliament to safeguard and promote the welfare of the subject child through the imposition of a comprehensive and wide ranging regulatory regime. Given the burden placed on providers by an application for registration, such a position on the part of the provider may be understandable if the provider does not ordinarily make such provision, for example a private landlord, the owner of a holiday park or other venue not ordinarily involved in social care. However, it is placements in this category that are most likely to result in a wholly unsuitable placement for obvious reasons. Within this context, a refusal by a provider to apply for registration immediately following a placement deprives the child for the duration of that placement of regulatory oversight where it is arguably most needed. In the context of the cases before the court, the local authority considers that the placement for QV, a holiday park, will not consent to an application being made to Ofsted for registration.
In the circumstances, and whilst each case falls to be considered on its own facts, it is unlikely in the context of a refusal by a provider to apply for registration that 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 (measured in hours or days and 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 (referred to as ‘in the moment cases’ in by Fordham J in R (on the application of Matthew Richards) v Environment Agency and Walleys Quarry Limited [2021] EWHC 2501 (Admin) at [50]). The operational duty of the court in such circumstances is to keep the child safe, however any authorisation given for a deprivation of liberty in that situation should be for the least time possible and a timetable for the identification of a placement that is registered or willing to apply for registration set by the court, registration of the placement being essential to ensuring that the child is kept safe in the medium and long term.
I accept that the Practice Guidance contemplates at [21] that registration may be refused following an application being made or that an application for registration may be withdrawn, and that the Guidance does not expressly prohibit the continuation of an unregistered placement in such circumstances. However, in my judgment, this does not detract from my overall conclusion that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not comply with the requirement of the Practice Guidance to apply for registration.
A person carrying on or managing a children’s home must apply for registration as a matter of law. Within this context, there is in my judgment a stark difference between a provider who makes an application and fails in the first instance (the chances of which can be significantly reduced by working in partnership with and taking advice from Ofsted once the application has been submitted) and the provider who refuses to apply or cannot apply. In the former situation, an attempt has been made to bring the child back within the regulatory regime mandated by Parliament, albeit that attempt has been unsuccessful. In such circumstances, the regulator has had a chance to consider the placement and the court must factor in the result when determining for the purposes of the Practice Guidance whether the placement of the child in the unregistered children’s home or unregistered care home service continues to be in the child’s best interests, and in particular whether, on the advice of the regulator, changes can be made to ensure a successful registration application in due course. In the latter situation, there has not even been an attempt to bring the child within the statutory regulatory regime, notwithstanding that that is what the law requires, with no opportunity for the independent regulator to consider the placement (because no application is made) and with the result that the child remains outside the statutory regulatory regime for the duration of the placement.
I also accept that, in light of the acute resource issues that have been the subject of other judgments handed down by this court and by other judges of the Family Division, cases may arise where an unregistered placement will not comply with the Practice Guidance with respect to an application for registration but no alternative placement is immediately available. Again, I am satisfied that this does not detract from my overall conclusion that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not comply with the requirement of the Practice Guidance to apply for registration under the statutory regime.
Again, it is important to remember that a person carrying on or managing a children’s home must apply for registration as a matter of law. In such circumstances, not to insist on compliance with the Practice Guidance would be to permit the providers who are unwilling to comply with the law to benefit from the lack of resources. Further, a child’s best interests falls to be evaluated taking into account all relevant circumstances. Whilst the absence of a placement may place the child at risk, the court must also take account of the fact that it is likely to be antithetic to a child’s best interests to be deprived of the protections of the statutory regulatory regime mandated by Parliament. Within this context, in the experience of this court, the providers that are unwilling to apply for registration of those offering placements that are the most problematic for vulnerable children in respect of which the court most regularly encounters a refusal to apply for registration, examples including holiday parks, private Air B&B properties, caravans and canal boats. These expose the child to a double deficit in the form of a sub-optimal placement that is also outwith the statutory regulatory regime designed to safeguard him or her. In such circumstances, for the court to acquiesce in the face of a refusal of a provider even to seek registration is to heighten significantly the risk to the highly vulnerable subject child.
Again, whilst each case turns on its own facts, it is unlikely in such circumstances that the court will conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child in that placement is in the child’s best interests. Rather, in such cases and accepting the difficulties created by resource issues, after hearing the matter the court is likely to indicate its intention to refuse the application for authorisation and invite the local authority to present alternative proposals (as this court did in Wigan MBC v W, N & Y [2021] EWHC 1982 (Fam)). Again, in such circumstances, the court may be required to make a very short order (measured in days and not weeks) to hold the ring whilst alternative arrangements are put in place. Again, 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 in an ‘in the moment’ case. Again, any authorisation given for a deprivation of liberty in that situation should be for the least time possible and a timetable for the identification of a placement that is registered or willing to apply for registration set by the court, registration of the placement being essential to ensuring that the child is kept safe in the medium and long term.
With respect to providers that “cannot” apply for registration, on behalf of Ofsted Ms Clement submitted that Ofsted does not recognise such a category, any person carrying on or managing a children’s home being required to apply for registration and any other placement not requiring registration because it is not a children’s home. Within this context, Ofsted contend that there is no such category of placements that “cannot” apply for registration. There is considerable force in that submission. However, in so far as a provider determines not to apply for registration because it could, for example, never meet the requirements to successfully apply, the court will be left in a similar position to that it finds itself in in respect of providers that will not apply. Once again, the child would be left outside the statutory regulatory regime for the duration of the placement as an application to Ofsted would never be made. Once again, this is not likely to be in the subject child’s best interests for the reasons set out above. If there are no steps being taken to regularise the position by applying for registration contrary to the Practice Guidance, the placement cannot be brought back at any point within the regulatory regime that Parliament has determined is required to meet the child’s needs. The inherent jurisdiction should not be used in circumstances which lead to the perpetuation of such an outcome. Again, the court may be required to make a very short order (measured in days and not weeks) to hold the ring whilst alternative arrangements are put in place, particularly 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.
Providers who are in the process of an application obviously fall into a different category. The Practice Guidance makes clear that it accommodates the process of seeking registration and the possibility that registration may be refused or the application withdrawn. But where there is a continued failure to prosecute an application for registration despite a stated intent to do so, once again the court may find itself in a position where it cannot extend the authorisation depriving the child of his or her liberty in circumstances where the placement continues to be outside the regulatory regime. That the Practice Guidance sets out timescales in respect of the application for registration (which timescales I shall return to in more detail below) indicates that the effort to secure registration, and thus an order authorising under the inherent jurisdiction the deprivation of the child’s liberty in an unregistered placement, cannot be open ended. The requirement to make an application for registration and the timescale for doing so serves to ensure that deployment of the inherent jurisdiction in association with unregistered placements departs from the statutory scheme’s requirement of a registration to the minimal extent necessary. Within this context, the greater the delay beyond the timescales set by the Practice Guidance the greater the risk that the statutory scheme ensuring the welfare of vulnerable child is undermined.

So it may be that where the home where the child is to be placed (or has been placed) is making an application to be approved by Ofsted under the President”s guidance, the Court might say that this is NOT a placement which WILL NOT OR CANNOT be approved under the Regulations, and thus the inherent jurisdiction MIGHT be used. But where the application has not been made in good time, or been refused, the inherent jurisdiction isn’t going to work.

Basically, we’re not eating the ship’s cat unless the cat itself asks the RSPCA whether it would be okay, but there’s no rations or rescue boat coming.

In practice what this means is that the supply increase that the High Court had jury-rigged as a solution to an out-of-control crisis in bed supply has been almost completely shut down, so now the bed supply which was already nowhere near enough has just got a whole lot smaller. Luckily for everyone, solving supply chain shortages is the number one success story of this Parliament, so no need to worry..