Introduction

The Supreme Court case T (A Child) Re ([2021] UKSC 35) addresses a critical aspect of child welfare law in England and Wales: the use of the High Court's inherent jurisdiction to authorize local authorities to deprive a child of their liberty. This case emerged against a backdrop of significant shortages in secure accommodations for children with complex needs. The central parties involved are T, a now-adult who was previously in care, and Caerphilly County Borough Council (CCBC), the local authority seeking to place her in restrictive living arrangements.

Summary of the Judgment

The Supreme Court upheld the lower courts' decisions that permitted the use of the inherent jurisdiction to authorize the deprivation of T's liberty, despite the lack of available approved secure accommodations. The court concluded that section 100(2)(d) of the Children Act 1989 does not prohibit the inherent jurisdiction's use in such circumstances. Moreover, the court found that the procedural safeguards in place complied with Article 5 of the European Convention on Human Rights (ECHR), which protects the right to liberty and security.

Analysis

Precedents Cited

The judgment references several key cases and legal principles:

• In re L (An Infant) [1968]: Established the inherent jurisdiction's roots in parens patriae.
• Wellesley v Duke of Beaufort (1827): Emphasized the court's duty to prevent irreparable harm to children.
• In re A (Children) (Conjoined Twins: Surgical Separation) [2001]: Demonstrated the inherent jurisdiction addressing extreme moral dilemmas.
• In re D (A Child) [2019] UKSC 42 and In re B (A Child) [2020] Fam 221: Discussed the interpretation and limits of secure accommodation under section 25 of the Children Act 1989.
• Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112: Established principles regarding a child's capacity to consent.

Legal Reasoning

The court's reasoning centered on interpreting section 100 of the Children Act 1989, which restricts the use of inherent jurisdiction in specific contexts related to parental responsibility and local authority care. The appellant argued that authorizing deprivation of liberty via inherent jurisdiction violates section 100(2)(d) and Article 5 ECHR. However, the court held that:

• Section 100 does not entirely abrogate inherent jurisdiction but restricts it to prevent circumvention of the statutory care order system.
• The inherent jurisdiction remains a necessary tool for safeguarding children when statutory accommodations are unavailable.
• Procedural safeguards, including court oversight and the necessity of demonstrating significant harm, align with Article 5 requirements.

Furthermore, the court emphasized the impracticality of relying solely on statutory schemes given the severe shortages in secure accommodations, making the inherent jurisdiction a vital safety net.

Impact

This judgment reinforces the High Court's inherent jurisdiction as a necessary mechanism to protect vulnerable children in the absence of adequate statutory provisions. It acknowledges systemic deficiencies in child welfare resources and upholds the court's role in ensuring child safety, even through unregistered or sub-optimal placements. The decision underscores the balance between statutory compliance and practical necessity, likely prompting calls for increased resources and better-regulated accommodations.

Complex Concepts Simplified

Inherent Jurisdiction

The inherent jurisdiction refers to the High Court's underlying power to make decisions for the protection of individuals, especially children, beyond what is explicitly provided in statutes. It's a common law mechanism ensuring child welfare when statutory measures fall short.

Secure Accommodation

Secure accommodation is housing designated to restrict a child's liberty, typically for safety reasons. Under section 25 of the Children Act 1989, such placements require specific criteria to be met, ensuring that only children with particular needs are placed in these settings. Approved secure children's homes must meet stringent regulatory standards.

Section 100 of the Children Act 1989

This section limits the High Court's inherent jurisdiction to prevent local authorities from bypassing the statutory care order system. It ensures that the inherent jurisdiction is only used when statutory orders are insufficient, requiring courts to authorize any alternative protective measures.

Article 5 of the European Convention on Human Rights (ECHR)

Article 5 protects individuals' rights to liberty and security, stipulating that nobody shall be deprived of their liberty except in specific lawful circumstances and following due procedures. In the context of child welfare, this means any deprivation of liberty must be legally justified and procedurally fair.

Conclusion

The Supreme Court's decision in T (A Child) Re affirms the High Court's ability to utilize inherent jurisdiction to protect children when statutory mechanisms are inadequate. While acknowledging the inherent shortcomings and vulnerabilities in the current child welfare system, the court validated the necessity of flexible judicial intervention to ensure child safety. This judgment highlights the urgent need for enhanced resources and regulatory measures to address the systemic gaps in secure accommodations, ensuring that children receive appropriate and lawful protection tailored to their complex needs.