26 October 2018, by Mai-Ling Savage
This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when making orders permitting the accommodation of a child, when the young person is Gillick competent and consents to the proposed care regime, notwithstanding that it significantly restricts her liberty to a degree that would otherwise require authorisation by a secure accommodation order pursuant to Children Act 1989 s25, if the placement was in a unit registered as a secure children’s home. The Court of Appeal expressed its concern in respect of the growing problem of the disparity between the greater number of young people requiring secure accommodation and the reduction in the number of approved secure children’s homes in England and Wales. The result of which is that local authorities are making increased numbers of applications to the High Court to exercise its discretion under the inherent jurisdiction to approve placements which amount to a deprivation of liberty but are not in secure children’s home approved by the Secretary of State. These placements fall outside the protection of the statutory scheme provided for in the Children Act.
The court was concerned with T, who was subject to a full care order. T was aged 15 at the time of the two first instance hearings, and was said to be Gillick competent and to be consenting to the proposed care regime. When the matter came before Mr Justice Mostyn for an application to authorise restriction of T’s liberty under the inherent jurisdiction, Mostyn J was persuaded that the court had to be satisfied that the young person was not consenting to the placement. Mostyn J held that any such consent “must be an authentic consent and must be an enduring consent”, meaning that the court was required to evaluate “whether the consent is going to endure in the short to medium term, or whether it is merely evanescent consent.” On the facts of the case the judge found it was not an enduring consent.
The President, in a lengthy and detailed judgment, considered the statutory scheme, Article 5 of the ECHR and reviewed the European and domestic authorities. At paragraph 69 McFarlane P held that:
On the basis of the ECtHR and domestic case law, and on the basis of the statutory scheme for secure accommodation in CA 1989, s 25 and SSW(W)A 2014, s 119, it is clear that, whilst a lack of valid consent may be an element in determining whether a person is deprived of their liberty in any given circumstances for the purposes of Art 5, lack of consent is not a jurisdictional requirement either for making a statutory secure accommodation order or for the High Court to exercise its inherent jurisdiction to authorise a local authority to restrict a young person’s liberty. That conclusion is established on the following four bases:
The consent, or otherwise, of the young person is not a relevant factor in the statutory scheme;
There is no domestic authority to the effect that it is necessary to find an absence of valid consent before the court may authorise a local authority to restrict the liberty of a young person;
To hold otherwise would be to confuse the distinct temporal perspectives of Art 5 and an application for authorisation;
It would also mistake the purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation.
McFarlane P at paragraph 81:
Drawing these matters together, once it is seen that the court’s power under s 25/ s 119 is not dependent upon any question of consent, the difficulties that arose in this case, as it was presented to the judge and, initially, to this court, disappear. The fact that any consent may or may not be ‘valid’ or ‘enduring’ on the day the order is sought, or at any subsequent point, or that a ‘valid’ consent is later withdrawn, is irrelevant to the scope of the court’s powers, whether they are exercised under statute or under the inherent jurisdiction of the High Court. The existence or absence of consent may be relevant to whether the circumstances will or will not amount to a deprivation of liberty under Art 5. But that assessment is independent of the decision that the court must make when faced with an application for an order authorising placement in secure accommodation, registered or otherwise.
This is an interesting judgment and decision in Re D may be looking at some of these related issues in the UKSC which was heard in early October in respect of a young person’s consent to deprivation of liberty. It also raises some important issues in respect of the availability of secure accommodation and the safeguards for vulnerable young people.
The full judgment is available here: Re T (A Child)  EWCA Civ 2136