Child and Family Agency v M.L. (Otherwise G.) & Ors

Factual and Procedural Background

This appeal arises from a special care order made under Section 23H of the Child Care Act 1991 by the High Court on 7 December 2018, lasting three months and extendable up to nine months. The appellant, a minor born in 2001, challenges the order on grounds including that the statutory threshold was not met and that the order infringed her constitutional right to liberty. The appellant was born into a highly dysfunctional and abusive household, taken into state care at age 10, and has a history of aggressive and violent behavior, including criminal convictions and detention. The Child and Family Agency (CFA) sought the special care order primarily due to the appellant’s suicidality and risk of self-harm, particularly threats made during detention at a youth detention centre. The High Court made interim special care orders in November 2018 before the full order in December 2018. The appellant’s mother, guardian ad litem, and the CFA all supported the special care order in the High Court and oppose the appeal. The appellant was represented by her own legal team with full party rights.

Legal Issues Presented

1. Whether the evidence before the trial judge justified the finding that the statutory threshold for a special care order pursuant to s.23H was met, including whether the appellant’s behaviour posed a real and substantial risk to her own life by self-harm or suicide.
2. Whether the trial judge erred in concluding that therapeutic objectives, including diverting the appellant from violent tendencies towards others, constituted a relevant welfare benefit under s.23H.
3. Whether the court failed to protect and vindicate the appellant’s constitutional right to liberty and whether the special care order amounted to preventative detention.
4. Whether sufficient weight was given to the appellant’s own views and those of the Director of the detention centre opposing the need for a special care order.
5. Whether a medical report from Professor Kennedy was properly received and considered by the court.
6. Whether, in all circumstances, the order complied with the Child Care Act 1991, constitutional provisions, and the European Convention on Human Rights.

Arguments of the Parties

Appellant's Arguments

• The statutory threshold for making a special care order had not been met, particularly the absence of clear and convincing evidence that the appellant posed a real and substantial risk to her own life.
• The appellant’s suicidal threats were instrumental and not seriously intended but aimed at achieving gender reassignment.
• The trial judge erred in considering diverting the appellant from violent tendencies towards others as a welfare benefit, arguing this was an improper consideration amounting to unlawful preventative detention.
• The appellant had not posed a risk to others for a significant period prior to the order.
• Insufficient weight was given to the views of the detention centre director and the appellant herself, both opposing the special care order.
• The trial judge failed to adequately consider whether there was an educational or therapeutic rationale for detention.
• The appellant was unwilling to engage in therapy except on her own terms, notably regarding gender reassignment.
• The report of Professor Kennedy was not intended for court use and should not have been relied upon.
• The judge failed to consider that Professor Kennedy had declined to clarify whether special care was required.
• The appellant’s repeated wishes not to be detained in special care were not given adequate regard.
• The judge erred in concluding special care was in the appellant’s best interests.

Child and Family Agency's Arguments

• The High Court correctly found the statutory threshold for a special care order was met based on compelling evidence of real and substantial risk posed by the appellant’s behaviour.
• The order was a lawful and proportionate balancing of the appellant’s right to liberty with her welfare and safety needs.
• The order was not preventative detention but a therapeutic intervention consistent with statutory and constitutional protections.

Appellant’s Mother’s Arguments

• The High Court judge correctly applied the law and facts, finding the statutory criteria for a special care order were satisfied.

Guardian ad Litem's Arguments

• The guardian emphasized the importance of the child’s views but acknowledged that the special care order was lawful and in the appellant’s best interests based on the evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed review of the statutory framework under Part IVA of the Child Care Act 1991, as amended, emphasizing the stringent prerequisites for a special care order, including that the child’s behaviour poses a real and substantial risk of harm to life, health, safety, development or welfare. The court noted the presumption of constitutionality of the legislation and its obligation to interpret it purposively, balancing the child’s constitutional rights, particularly the right to liberty, against the child’s welfare needs.

The court considered extensive expert evidence, including psychological and psychiatric reports, which consistently identified the appellant as an extremely complex and disturbed young person exhibiting violent behaviour, high risk of self-harm and suicide, and profound developmental challenges stemming from early childhood trauma. The appellant’s threats of suicide, though described as instrumental by some experts, were nonetheless serious and could result in accidental death. The appellant’s violent conduct towards others was found to pose a real and substantial risk to her own welfare and development.

The court rejected the appellant’s contention that the special care order was preventative detention, distinguishing it from criminal sentencing and emphasizing the therapeutic and welfare-oriented purpose of the order. The court found that the statutory safeguards, including time limits and periodic judicial review, ensured proportionality and compliance with constitutional and human rights standards.

Regarding the appellant’s and the detention centre director’s opposing views, the court acknowledged them but found that the trial judge was entitled to give greater weight to the comprehensive expert evidence supporting the special care order. The medical report from Professor Kennedy, though not a court report, was properly admitted and considered with appropriate weight.

The court affirmed that the special care order was necessary and proportionate, aimed at providing therapeutic intervention to address the appellant’s behaviour and risks, and consistent with constitutional protections and international obligations.

Holding and Implications

The Court of Appeal UPHELD the decision of the High Court to make the special care order pursuant to Section 23H of the Child Care Act 1991.

The special care order was found to be lawful, necessary, and proportionate to protect the appellant’s life, health, safety, development, and welfare. The order did not constitute unlawful preventative detention and complied with constitutional rights, the European Convention on Human Rights, and relevant international standards. The decision confirms the strict evidential and procedural safeguards required for such orders and underscores the court’s role in balancing a child’s right to liberty with their welfare needs in exceptional cases. No new legal precedent was established beyond affirming the existing statutory and constitutional framework as properly applied in these circumstances.