Introduction

The case of T (A Child) [2018] EWCA Civ 2136 before the England and Wales Court of Appeal (Civil Division) addresses critical issues surrounding the use of the High Court's inherent jurisdiction to make secure accommodation orders under circumstances where the statutory system is constrained by limited capacity. This commentary explores the court's decision, emphasizing the nuanced interplay between consent, judicial discretion, and statutory frameworks in safeguarding the rights of vulnerable young people.

Summary of the Judgment

The appeal centers on whether the High Court must establish a lack of valid consent from a young person before authorizing the restriction of their liberty under the inherent jurisdiction, particularly when statutory secure accommodation orders are unattainable due to limited approved facilities. The appellant, a 15-year-old under a full care order, consented to restrictive placement regimes. The initial judgment by Mostyn J granted authorization for restriction despite the appellant's consent, citing concerns over 'authentic' and 'enduring' consent. However, upon appeal, it was determined that consent is not a prerequisite for the inherent jurisdiction to authorize restrictions, aligning with both statutory provisions and European Convention on Human Rights (ECHR) requirements.

Analysis

Precedents Cited

The judgment references several pivotal cases:

• Re K (Secure Accommodation Order: Right to Liberty) [2001] 1 FLR 536 – Established that secure accommodation orders under CA 1989, s 25 conform with ECHR Article 5 when properly authorized.
• Cheshire West and Cheshire Council v P [2014] UKSC 19 – Clarified the definition of deprivation of liberty, emphasizing the necessity of lack of valid consent.
• Storck v Germany (Application number 61603/00) [2005] ECHR 406 – Highlighted that deprivation of liberty under Article 5 requires both objective confinement and subjective lack of valid consent.
• De Wilde, Ooms and Versyp (Vagrancy) v Belgium (Applications 2832/66, 2835/66 and 2899/66) [1970] 1 EHRR 373 – Asserted that voluntary surrender to police does not negate deprivation of liberty under Article 5.
• Local Authority v D [2016] EWHC 3473 (Fam) – Demonstrated that valid and enduring consent can negate the need for court authorization under inherent jurisdiction.

Legal Reasoning

Mostyn J initially posited that for the inherent jurisdiction to authorize restriction of liberty, the court must ascertain a lack of valid, enduring consent. This approach was critiqued for imposing a 'catch-22' scenario where consent could inadvertently limit the court's ability to act in the best interests of the child. Upon appeal, the court clarified that under CA 1989, s 25 and SSW(W)A 2014, s 119, the statutory scheme does not necessitate the absence of consent for authorizing secure accommodation. The inherent jurisdiction serves to mirror statutory provisions, focusing on the necessity of restriction based on welfare criteria rather than the subjective consent of the child. This distinction ensures that the court's authorization aligns with legislative intent and human rights obligations without being unduly hindered by consent dynamics.

Impact

This judgment reinforces the High Court's ability to authorize secure accommodation orders under its inherent jurisdiction without being contingent on demonstrating a lack of valid consent. It delineates the boundaries between statutory authority and human rights considerations, ensuring that vulnerable young people receive necessary protection even amidst systemic capacity constraints. Future cases will likely reference this decision to balance the welfare of children with their autonomy, particularly in scenarios where approved secure placements are scarce.

Complex Concepts Simplified

Inherent Jurisdiction

The High Court possesses inherent jurisdiction, a residual power allowing it to make decisions in the absence of statutory provision, primarily to protect those who are vulnerable. In this context, it enables the court to authorize restrictions on a child's liberty when statutory secure accommodation orders are not feasible.

Deprivation of Liberty (Art 5 ECHR)

Under Article 5 of the European Convention on Human Rights, "Everyone has the right to liberty and security of person." A deprivation of liberty involves both objective confinement and a subjective lack of valid consent.

Secure Accommodation Orders

These are court orders under the Children Act 1989 or the Social Services and Wellbeing (Wales) Act 2014 that authorize the placement of a child in accommodation designed to restrict their liberty, ensuring their safety and welfare.

Conclusion

The Court of Appeal's decision in T (A Child) marks a significant clarification in the intersection of inherent jurisdiction and human rights in the context of secure accommodation orders. By affirming that consent is not a prerequisite for authorization under inherent jurisdiction, the judgment ensures that the welfare of vulnerable young individuals is prioritized over procedural consent barriers. This balanced approach harmonizes statutory mandates with ECHR obligations, providing a robust framework for future judicial decisions in similar circumstances.