Placement of children in unregistered care homes ruled lawful

This appeal concerns young people deprived of their liberty in unregistered children’s homes. At first instance, MacDonald J authorised their deprivation of liberty in an exercise of the High Court’s inherent jurisdiction. One of the unsuccessful claimants appealed against that order, challenging the decision of Derby City Council to deprive him of his liberty in an unregistered home.

Two questions arose on appeal:

1. After the coming into force of the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021, was placing a child under the age of 16 in an unregistered children’s home lawful as a matter of domestic law and thus Article 5 ECHR?
2. Where Parliament had legislated to prohibit the placement of a child under 16 in an unregistered children’s home, could the Court authorise a deprivation of liberty under the inherent jurisdiction?

Both questions were answered in the affirmative. On the first issue, the Court accepted that placements in an unregistered children’s home were wholly outside the statutory scheme and therefore not prohibited by s. 22C of the Children Act 1989. The Supreme Court had been aware in Re T [2021] UKSC 35; [2021] 3 WLR 643 that placements were being made in unregistered children’s homes and were the subject of Presidential Guidance. Re T therefore endorsed the use of the inherent jurisdiction to authorise such placements where there were “imperative circumstances of necessity”. Re T further authorised placing children in accommodation even where this had been expressly prohibited by statute, where such a placement was necessary on a short-term basis to meet the overarching needs of the child. Therefore, the position of unregistered children’s homes was unaffected by the amended Regulations.

The Court pragmatically recognised that it would often be impossible for social workers to find a suitable, bespoke placement which meets the requirements of the statutory scheme. If a placement outside that scheme was the only option for protecting a young person, it was “beyond contemplation” that strict adherence to the regulatory scheme should prevent them being accommodated.

The common law allowed for such placements and thus any deprivation within an unregistered children’s home was ‘in accordance with the law’ for the purposes of Article 5(1) ECHR.

The Court of Appeal confirmed that local authorities may place young people in settings which were not authorised or even expressly prohibited by the Children Act and its regulations, in emergency situations where no other option is available. The situation is the same for children deprived of their liberty.

This case reflects the pragmatic and realistic approach which courts will take to the often-stark realities faced by local authorities seeking to find suitable placements for vulnerable young people in their care. It suggests that Courts will not penalise such bodies who are forced by necessity to act outside (or even directly contrary to) the statutory and regulatory framework. Nevertheless, the Court recognised the need for such departures from the statutory norm to take place only where strictly necessary and where adherence to that scheme would prevent a local authority from protecting the young person in its care.

Miranda Butler is a barrister at Landmark Chambers specialising in public law and human rights. She also teaches at LSE University.

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