Section 100 Leave for Inherent-Jurisdiction Child DoL: “No Available s.25 Bed” and Emotional/Placement-Instability Harm Satisfy Significant Harm

Case: T (Inherent Jurisdiction: Deprivation of Liberty)
Citation: [2026] EWCA Civ 307
Court: England and Wales Court of Appeal (Civil Division)
Date: 19 March 2026

1. Introduction

This appeal concerned whether a local authority could (and should) obtain authorisation under the High Court’s inherent jurisdiction to deprive a 17-year-old (“T”) of his liberty in a residential unit (L House) that was, at the time, unregistered with Ofsted. T had long-standing neurodevelopmental diagnoses (ADHD and ASD) and a documented pattern of escalating aggression, threats, property damage and episodes of self-harm. Following a serious incident on 4 March 2026, the unit refused to accept him back without an authorisation permitting enhanced staffing and restraint if required.

A short-term authorisation was initially granted. On return a few days later, Recorder Basu KC (sitting as a deputy High Court judge) refused to extend matters, principally on the footing that (i) the statutory route under section 25 Children Act 1989 was available, (ii) there was insufficient evidence that T was likely to suffer significant harm if no inherent-jurisdiction order was made, and (iii) it would be “wrong in principle” to use inherent jurisdiction where alleged criminality was involved without criminal-standard proof and without T being heard.

The Court of Appeal allowed the appeal and restored authorisation, emphasising the real-world scarcity of secure beds, the breadth of “harm” (including emotional/psychological harm), and the necessity of a welfare analysis that confronts the consequences of refusal— including immediate placement breakdown and homelessness.

Key issues

• Section 100 Children Act 1989: Was the judge wrong to refuse leave because section 25 “could” be used, despite no secure placement being available?
• Significant harm: Did the judge err by focusing on lack of physical injury and discounting emotional/psychological harm and harm arising from instability?
• Best interests/welfare realism: Did the judge fail to weigh the practical consequences (loss of placement; homelessness) in the proportionality and welfare balance?
• Unregistered placement: Could inherent jurisdiction authorise DoL at an unregistered setting where necessity demanded it and guidance was followed?
• “Criminality” concern: Did the judge wrongly treat alleged offending as a principled bar to welfare-based protective restrictions?

2. Summary of the Judgment

3. Analysis

3.1 Precedents Cited

(a) Storck v Germany (2005) 43 EHRR 6

The Court of Appeal treated Storck v Germany (2005) 43 EHRR 6 as the foundational ECHR authority identifying the components of a deprivation of liberty: (i) objective confinement, (ii) lack of valid consent, and (iii) state responsibility. Here, the parties did not dispute that the proposed regime at L House met the DoL threshold; its relevance was to anchor the Article 5 analysis and to confirm that, once the “DoL” character is accepted, authorisation must be lawful, necessary, proportionate, and procedurally safeguarded.

(b) Cheshire West and Chester Council v P [2014] AC 896

Cheshire West and Chester Council v P [2014] AC 896 supplies the “acid test” (continuous supervision and control; not free to leave; inability to consent). The Court of Appeal used it to underline that the court below was correct to record the arrangements as a DoL. The controversy was not definitional but justificatory: whether the inherent jurisdiction could be engaged and, if so, whether the order was in T’s best interests.

(c) Koniarska v United Kingdom (2000) 30 EHRR CD 139 and Re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] Fam 377

These authorities were cited to explain Article 5(1)(d)’s “educational supervision” and its breadth beyond classroom instruction. The Court reiterated that educational supervision can include structured support for behavioural, emotional, social and developmental needs (Re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] Fam 377). This contextualises why protective restrictions for a troubled minor are not inherently penal; they can be welfare-based supervision consistent with Article 5, provided lawful procedures exist.

(d) Re T (A Child) [2021] UKSC 35

Re T (A Child) [2021] UKSC 35 is the modern cornerstone authorising inherent jurisdiction to “fill the gap” when section 25 compliant secure accommodation is unavailable, subject to strictness—especially where placements are unregistered. The Court of Appeal applied Re T in two ways:

• Gap-filling legitimacy: the inherent jurisdiction remains available as a safety net when the statutory scheme cannot deliver a safe solution due to resource constraints.
• Unregistered placements: authorisation in an unregistered setting demands “imperative considerations of necessity” and adherence to the President’s guidance. The Court found necessity given the imminent collapse of placement and lack of alternatives.

(e) Tameside Metropolitan Borough Council v C & Ors [2021] EWHC 1814 (Fam)

The Court relied on Tameside Metropolitan Borough Council v C & Ors [2021] EWHC 1814 (Fam) for the welfare framework governing inherent-jurisdiction DoL: once leave is granted, the court must (i) confirm the arrangements constitute a DoL under Article 5 and (ii) conduct a broad, holistic best-interests appraisal, including realistic consideration of the options actually available. This supported the Court’s critique that the judge below failed to confront the practical consequence of refusal (immediate loss of placement; homelessness).

(f) Re E (S.27 Direction) [2025] EWCA Civ 470

The Court cited Re E (S.27 Direction) [2025] EWCA Civ 470 for the Children Act’s architecture: a single route into care and the deliberate curtailment—but not eradication—of inherent jurisdiction. Its relevance was to situate section 100’s gatekeeping purpose: the inherent jurisdiction must not undermine statutory schemes, yet it remains available as a constrained safety net where statutory orders cannot achieve the protective result.

3.2 Legal Reasoning

(1) Correct approach to section 100(4)(a): “availability” must be practical, not theoretical

The judge below treated section 25 as an available alternative because, conceptually, T’s risks could meet section 25(1)(b) (likely to injure himself or others). The Court of Appeal held that this misconceived section 100(4)(a). The question is whether the result sought could be achieved through another order the authority is entitled to apply for. Where there is a “chronic shortage” of secure beds, section 25 does not provide an achievable route in the time and circumstances required; it is not a true alternative. The Court also stressed a child-centred reality: T wanted to remain at L House and an immediate move would be “plainly contrary to his welfare.”

(2) Correct approach to section 100(4)(b): significant harm includes emotional/psychological harm and developmental impairment

The judge focused on limited evidence of physical injury (a cut hand on one occasion; no visible injury during the precipitating incident). The Court of Appeal held this was a legal error: “harm” in the Children Act, via section 105(1) and section 31(9), includes ill-treatment and impairment of health or development, including emotional and psychological harm. On the totality of evidence—years of dysregulation, threats, violence, self-harm episodes, and escalation—there was plainly reasonable cause to believe that without court-authorised restrictions T was likely to suffer significant harm (including future physical harm if escalation continued).

(3) Best interests and proportionality: the welfare appraisal must engage with consequences of refusal

The Court treated as central the “realism” mandated by welfare law in resource-constrained situations: if the order was refused, L House would not keep T; there was no alternative placement; and T would be homeless. That outcome itself would foreseeably expose him to serious harm. Accordingly, necessity and proportionality supported authorisation, subject to strict safeguards (trained staff, restraint as last resort, minimum force, dignity, least restrictive measures, time-limited order, and rapid review before a full-time Family Division judge).

(4) Unregistered placement: “imperative considerations of necessity” and compliance with PFD guidance

Although L House was unregistered (having had registration withdrawn), it was seeking registration and there was no alternative. Applying the approach endorsed in Re T (A Child) [2021] UKSC 35, the Court accepted that “imperative considerations of necessity” justified authorisation, provided the President of the Family Division’s unregistered placements guidance was followed (including enquiry into registration status and reasons for using an unregistered placement, and potential notification to Ofsted).

(5) The “criminality” misdirection

The Court declined to decide all points raised on the judge’s criminal-law discussion, but observed that his “apparent focus on the potential criminal nature” of T’s actions led him into error. The function of the inherent-jurisdiction DoL order is protective and welfare-based, not punitive. Article 5 and domestic law require legality and safeguards, but do not import a requirement that allegations be proved “beyond reasonable doubt” as a prerequisite to necessary welfare restrictions.

3.3 Impact

(a) A clarified, operational test for section 100 leave in DoL cases

The judgment reinforces that section 100(4)(a) cannot be defeated by pointing to section 25 in the abstract; the court must ask whether a section 25 pathway is actually available (including availability of a secure bed). This is likely to be cited in urgent DoL litigation where the local authority can demonstrate a genuine absence of compliant secure provision.

(b) “Significant harm” in section 100(4)(b) is not a “blood-and-bone” threshold

By emphasising section 31(9)’s definition, the Court confirms that emotional/psychological harm, developmental impairment, and harm arising from instability (including homelessness risk) can satisfy the “reasonable cause to believe” test, particularly when viewed against a pattern of escalating behaviour. This should reduce the risk of courts mistakenly demanding expert evidence in every case before acknowledging emotional harm.

(c) Welfare realism in a resource crisis: consequences of refusal are part of the legal analysis

The decision strengthens the principle (seen in Tameside Metropolitan Borough Council v C & Ors [2021] EWHC 1814 (Fam)) that where the system lacks ideal options, the court must still decide using a holistic welfare appraisal that includes what will happen if the order is refused. Practically, local authorities and guardians are likely to foreground evidence about “what happens next” (placement termination letters, bed searches, homelessness contingencies) as determinative of necessity and proportionality.

(d) Unregistered placements: continued judicial tolerance, but only where necessity is truly imperative

The Court’s willingness to authorise DoL in an unregistered setting underscores that the inherent jurisdiction remains the emergency backstop. However, by grounding authorisation in “imperative considerations of necessity” and the President’s guidance, the judgment also signals that unregistered placements remain exceptional and heavily scrutinised.

(e) A warning against conflating welfare protection with criminal adjudication

The Court’s criticism of the “criminality” focus is likely to be used to rebut arguments that welfare-based restrictions are barred unless allegations are tried to the criminal standard. The protective jurisdiction is not a parallel criminal court, but it can respond to risk behaviour where necessary and proportionate to protect the child (and, indirectly, others).

4. Complex Concepts Simplified

• Deprivation of liberty (DoL): Not just “restriction.” A DoL typically exists where the person is under continuous supervision and control, not free to leave, and cannot validly consent (Cheshire West and Chester Council v P [2014] AC 896), aligning with the elements described in Storck v Germany (2005) 43 EHRR 6.
• Section 25 secure accommodation: The statutory route to keep a “looked after” child in accommodation designed to restrict liberty, where criteria about absconding/significant harm or risk of injury to self/others are met, with time limits and court oversight.
• Inherent jurisdiction: The High Court’s historic protective power for children, used sparingly and subject to statutory constraints. It can “fill gaps” where the statutory scheme cannot practically protect the child (as confirmed in Re T (A Child) [2021] UKSC 35).
• Section 100 leave: A gatekeeping permission step. The local authority must show (a) no other order could achieve the same result and (b) reasonable cause to believe the child is likely to suffer significant harm without inherent-jurisdiction intervention.
• “Harm” (Children Act meaning): Includes emotional and psychological harm and impairment of development, not only physical injury.
• Unregistered placement: A setting that falls within the legal definition of a children’s home but is not registered with the regulator. Courts can authorise DoL there only where necessity is imperative and guidance is followed.
• Proportionality / least restrictive option: Even if a DoL is justified, restrictions must go no further than necessary to manage the risk; safeguards (training, last resort, minimum force, dignity, time limits, review) are central to legality.

5. Conclusion

T (Inherent Jurisdiction: Deprivation of Liberty) reasserts—and sharpens—the legal pathway for urgent child DoL cases in the context of the secure-accommodation shortage. The Court of Appeal held that section 100 leave cannot be refused on a theoretical reliance on section 25 where no secure bed exists; that “significant harm” includes emotional/psychological harm and developmental impairment; and that best-interests decision-making must confront the real consequences of refusal, including placement collapse and homelessness. The judgment also cautions against treating alleged criminality as a principled bar to protective welfare orders, and confirms that unregistered placements may be authorised only on imperative necessity with strict safeguards.