As set out in the September Landmark Insight edition , new regulations have come into force that limit the types of accommodation in which a looked after child under 16 can lawfully be placed by children’s services. On 8 September 2021, Mr Justice MacDonald, in Tameside MBC v AM & others (DOL Orders for Children under 16)  EWHC 2472 (Fam) came to the conclusion that the High Court could declare that a deprivation of liberty in an unregistered placement was capable of being lawful if there was no alternative, “subject always to the rigorous application of the President’s Guidance” of November 2019 and December 2020. An analysis of that decision can be found here, and it was predicted that the matter was likely to be considered in the Court of Appeal in the near future.
The Court of Appeal heard this on 16 and 17 November 2021 and so hopefully this will bring some clarity to these (very difficult) issues.
Whilst we await the judgment, on 3 November 2021, Macdonald J. issued a further judgment dealing with
the range of circumstances in which the jurisdiction he found subsisted may be applied. In Derby City Council & others  EWHC 2931, the central question was:
“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.”
Ofsted and the Secretary of State submitted that the answer was “no”, and the local authorities submitted that the answer was “yes”. The matter was listed to be determined as a preliminary issue.
In short, the Court held:
- Guidance given by a Head of Division remains guidance, not law, it does not create a legal requirement, nor does it give rise to a cause of action if not followed: §45.
- Unwillingness or inability to comply with the terms of the Practice Guidance does not act per se to oust the jurisdiction of the High Court to authorise the deprivation of a child’s liberty in an unregistered placement: §62.
- However, 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 Article 5 ECHR and “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 for registration”: §63.
The facts of the individual cases are set out in the judgment demonstrate how very difficult it will be to apply the law as declared to the facts of these cases. This includes, for example, the placement of a highly vulnerable 14-year-old child with a diagnosis of ASD, ADHD and Tourette’s Syndrome who displays violent and destructive behaviour with complex and acute emotional needs in a holiday park cottage. This obviously does not have the safeguards which would be expected in a formal children’s home residential setting and is on any view, thoroughly unsuitable. But there was no alternative provision available.
It is clear from the exposition of the facts in the individual cases (which are not that uncommon) that the State has set up a legal framework of requirements that, by reason of resources and what is available, simply cannot be complied with in a significant number of cases. And some of the most vulnerable children in society suffer as a result.
In addition to the unsatisfactory conditions in which children are being looked after, the current situation potentially exposes those carrying on or managing the unregistered children’s home to a criminal offence under s11(1) of the Care Standards Act 2000. Section 30 further provides that, where the offence is committed by a body corporate, an individual may be prosecuted if the offence is proven to have been committed with the consent or connivance of any director, manager or secretary of the body corporate or any person purporting to act in such a capacity. This imposes an additional burden on those responsible for placing and looking after children who often have to put together complex packages in difficult conditions in addition to performing a job which is very difficult already.
Although one hopes that clarity from the Court of Appeal will be forthcoming, it is clear that there is no easy answer and all answers are likely to be sub-optimal.
Samantha Broadfoot QC is a specialist practitioner in public law and human rights who has assisted local authorities, placement centres, children’s guardians and parents faced by these complex issues.
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