21 November 2018

October 2018 - Public Law

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Inherent jurisdiction of the High Court making secure accommodation orders where child was Gillick competent and consented to the proposed care regime

T (A Child) [2018] EWCA Civ 2136

4 October 2018

  • This appeal related to the exercise of the inherent jurisdiction by the High Court, when called upon to make orders which, but for a lack of capacity in the statutory system, would have been made as secure accommodation orders under Section 25 of the Children Act (CA) 1989 .
  • Secure accommodation orders under Section 25 of the CA 1989 can only be made in respect of units approved by the Secretary of State. Inherent jurisdiction has been used increasingly often, due to an increasing number of children needing secure accommodation and a corresponding reduction in placements approved by the Secretary of State. The Court of Appeal expressed its concern about this trend, as those placements fall outside of the protections provided by the Children Act.
  • The child in the case was a 15-year-old girl called T, who was Gillick competent and consented to the proposed care regime. She was subject to a full care order.
  • The decision that was subject to the appeal was by Mostyn J. Mostyn J considered that the Court had to be satisfied that the individual in question was giving “enduring” rather than merely “evanescent” consent.
  • President McFarlane evaluated ECtHR and domestic case law, Section 25 of the CA 1989 and Section 119 of the Social Services and Wellbeing (Wales) Act 2014. Neither made reference to a need to establish a lack of consent.
  • The Court of Appeal held that a lack of valid consent was not a pre-requisite for making either a secure accommodation order under the Children Act or for the High Court to exercise its inherent jurisdiction to authorise a local authority to restrict a young person’s liberty for the following reasons:
  1. The absence of consent was not a relevant factor in the statutory scheme.
  2. There was no domestic authority to the effect that it was necessary to find an absence of valid consent before the court may authorise a local authority to restrict the liberty of a young person. Section 25 authorised the local authority to deprive a child of their liberty, rather than doing so itself.
  3. A determination under Article 5 was a retrospective evaluation by the Court of the individual’s circumstances, whilst applications for secure accommodation orders involved a prospective evaluation of what circumstances would justify secure accommodation orders.
  4. It would mistake the purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent secure accommodation. Neither the LA nor the child could authorise what Parliament has decided only the Court could authorise. Since the Court’s authorisation would be used to deprive the child of their liberty, the legal requirements of Article 5 would have been fulfilled, in that the Court would determine whether the child’s welfare justified them being deprived of their liberty for the purposes of remaining in the secure accommodation.
  • However, a lack of consent may be an element in determining whether a person is deprived of their liberty in any given circumstances for the purposes of Article 5. That assessment is independent of the one the Court must make when faced with an application for an order authorising placement in secure accommodation, registered or otherwise.
  • Mostyn J erroneously accepted that he needed to find lack of consent before he could grant the LA’s application. The appeal became no more than a challenge to the judge's discretion, which could only succeed if the Court was satisfied that the judge was wrong to grant authorisation to the local authority notwithstanding the apparent consent of the young person. There was no basis for holding that Mostyn J was 'wrong' to authorise restriction of liberty in this case. The appeal was dismissed.



Final Hearing in care proceedings in which Keehan, J gave himself a revised Lucas direction

Hertfordshire CC v Ms T and Mr J [2018] EWHC 2796 (Fam)

3rd August 2018

  • This was an application for a Care Order under the Children Act 1989 in respect of Child A,who is 9 years of age, and Child B who is 7 years of age.
  • On the date of the hearing both children were in foster care, having been removed from their parents’ care due to concerns of physical, emotional, psychological, and sexual abuse and neglect.
  • Their father (‘F’) was a 38 year old Afghani male, their mother (‘M’) was a 35 year old Latvian female.
  • On 26th October 2017 M and F were arrested on suspicion of human trafficking as part of a joint investigation by the Home Office and the National Crime Agency. As part of this investigation, their mobile phones were seized and interrogated. The results gave rise to significant child protection concerns.
  • On F’s phones were five videos of sexual activity with children. Four of the videos depicted F himself having sexual intercourse with a 12 year old female child. The other video was of a young boy of approximately 8 years of age being masturbated by an adult female.
  • The risk apparent to Child A and B was obvious. They were made subject of police protection, before being accommodated under an ICO to a foster care placement.
  • The children were noted by foster carers to be regularly demonstrating inappropriate sexualised behaviours. Child A made disclosures that he had been subject of sexual abuse.
  • The Applicant Local Authority considered the children to be at risk from both parents. The Social Worker was shocked at M’s response to the child abuse videos. She did not appear disgusted, and sought to blame the 12 year old girl for having intercourse with F.
  • Prior to the care proceedings, F absconded and therefore played no part.
  • The case came before Mr. Justice Keehan in the Family Division of the High Court.
  • M gave evidence at the Final Hearing and was found to be a ‘wholly unsatisfactory’ witness. She was found my Mr. Justice Keehan to have repeatedly lied in her evidence.
  • It was for this reason that the Judge gave himself a revised Lucus direction in the following terms [9]:

“I should only take account of any lies found to have been told if there is no good reason or other established reason for the person to have lied”.

  • At paragraph [9] Keehan, J went on to cite McFarlane LJ in Re H-C [2016] EWCA civ 136 in respect to the appropriate approach to lies in the Family Courts.
  • Keehan J found that M had lied to deceive the Court, and to cover up her actions or those of F.
  • This finding contributed to the granting of Care Orders in respect of Child A and Child B.



Failure of a local authority to secure a suitable placement for a child demonstrating a variety of challenging behaviours

Re D (A Child) [2018] EWHC 2828 (Fam)

5 October 2018

  • This hearing in the High Court before Hayden J came about following the transfer of the case by the Designated Family Judge for Liverpool and Merseyside as a result of their exasperation at the inability of the local authority to find an appropriate placement for D.
  • D has a diagnosis of autism, and has recently been displaying a range of extremely challenging behaviours thought to be linked to PTSD brought on by her witnessing the atrocities of war in Iraq between 2014 – 2017.
  • D’s parents, unable to manage her behaviours, consented to her voluntary placement outside the family at a specialist residential care home for children with autism and learning needs. This placement broke down. D was returned home to her parents but again this arrangement was short-lived. D was taken to Alder Hey Children’s Hospital where she remained for the next 5 months.
  • D was still being accommodated at Alder Hey at the date of this hearing.
  • It was common ground that Alder Hey was not a suitable placement, but D remained there while the local authority sought to secure an appropriate secure residential placement with therapeutic support.
  • In order to manage D’s behaviour, Alder Hey required 24 hour security staffing, as well as additional FSW and nursing provision.
  • D continued to scream, self-harm, and assault staff members. She was presenting a risk of harm to herself, and causing significant disruption to the Hospital. This lead to 8 beds at this highly specialised facility being made unavailable to sick children.  
  • On the morning of the hearing, the local authority sent an email to the court confirming that a suitable alternative placement for D had been found.
  • Hayden J described this case as profoundly disturbing.
  • He was highly critical of the approach of the local authority who were under a duty to find a safe and secure residential placement for D.
  • Hayden J was sceptical of the suggestion that it was a coincidence that a suitable placement had been secured for D on the day of the hearing, and wondered whether the fact the case had been moved to the High Court had influenced this outcome.
  • It was found that the extended stay at Alder Hey had fallen far short of meeting even D’s most basic needs.
  • Hayden J found that D had suffered significant harm, and that the state had “become an agent of that harm”.
  • According to Hayden J, the professionals involved in D’s care should not have been asked to tolerate the situation for more than a matter of hours at best.
  • In supporting the proposed interim care plan for D, Hayden J expressed the hope that the hearing had done something to galvanise constructive action.