T (A Child), Re

Factual and Procedural Background

The case arises from a chronic national shortage of approved secure children’s homes in England and Wales. Faced with no available statutory placement for “Appellant,” a 15-year-old subject to a care order, “Local Authority A” sought High Court authorisation under the court’s inherent jurisdiction to place her in two successive placements (“Placement 1” and “Placement 2”) that would inevitably deprive her of liberty. Both premises were outside the statutory secure-accommodation scheme: Placement 1 was an unregistered children’s home; Placement 2 was registered as a children’s home but not approved for secure use.

Judge Mostyn granted authorisations. The Court of Appeal (Judge McFarlane P, Judges Baker and Peter Jackson) dismissed the Appellant’s appeal, holding that the orders were permissible despite her professed consent. The Appellant obtained permission to appeal to the Supreme Court after she had turned 18 and the orders had lapsed, the appeal therefore being of systemic importance rather than personal effect.

Legal Issues Presented

1. Whether the High Court may, under its inherent jurisdiction, authorise a local authority to deprive a child of liberty in accommodation that is not approved under the statutory secure-accommodation regime (Children Act 1989, s 25 / Social Services and Well-Being (Wales) Act 2014, s 119).
2. If such jurisdiction exists, how (if at all) does a child’s capable consent to the proposed restrictive regime affect the court’s discretion to make an order?

Arguments of the Parties

Appellant's Arguments

• Section 100(2)(d) Children Act 1989 bars the court from conferring on a local authority powers amounting to parental responsibility to impose liberty-restricting measures.
• Using the inherent jurisdiction “cuts across” the detailed statutory code in ss 25/119 and associated regulations that govern secure accommodation.
• Any deprivation of liberty so authorised is not “in accordance with a procedure prescribed by law” and therefore breaches Article 5 of the European Convention on Human Rights.
• Even if jurisdiction exists, the Appellant’s own valid consent made any judicial authorisation unnecessary and contrary to her best interests.

Local Authority A's Arguments

• The inherent jurisdiction remains available where no statutory secure placement exists, otherwise vulnerable children would be left at grave risk.
• Section 100 permits such applications once the leave and significant-harm gateways in s 100(3)–(5) are satisfied, which they were.
• Consent is only one factor in the welfare/proportionality evaluation; here it was unreliable and transient.

Secretary of State for Education's Arguments

• Section 100(2)(d) is not engaged because the local authority already holds parental responsibility under the care order; the court merely authorises its exercise.
• Article 5 is satisfied: court orders under the inherent jurisdiction provide a clear, accessible legal basis with adequate procedural safeguards.

Children’s Commissioners & Other Interveners

• Supported availability of the inherent jurisdiction but urged the Court to articulate robust procedural safeguards (e.g. mandatory reviews, party status for the child).
• Highlighted risks inherent in unregistered or unregulated placements but accepted that, in extremis, court authorisation may be the only protective mechanism.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Section 100 Children Act 1989
The Court (per Judge Black) held that s 100(2)(d) does not prohibit authorisation. The inherent jurisdiction did not “confer” fresh parental-responsibility powers; it merely sanctioned the local authority’s existing duty to accommodate and protect the child under a care order. Sub-sections 100(3)–(5) were satisfied: no statutory order could achieve the necessary result, and without intervention the child was likely to suffer significant harm.

2. Relationship with the Secure-Accommodation Code
Section 25 applies only to premises “designed for” or having as their “primary purpose” the restriction of liberty. Purpose-built, Secretary-of-State-approved secure children’s homes clearly fall within that definition; bespoke therapeutic placements generally do not. Where the s 25 route is unavailable because no approved bed exists, recourse to the inherent jurisdiction is indispensable; otherwise the state would be powerless to avert life-threatening risks.

3. Article 5 ECHR
A High Court order under the inherent jurisdiction is a “procedure prescribed by law.” Extensive case law, mirroring s 25 safeguards (party status for the child, representation, detailed care plans, regular judicial review and “liberty to apply”), secures accessibility, foreseeability and procedural protection. The existence of criminal liability for running an unregistered home does not negate the court’s power where no lawful alternative exists; necessity prevails.

4. Child’s Consent
Valid consent may prevent a situation amounting to a deprivation of liberty, but it is not a jurisdictional bar to authorisation. Consent is one factor in the welfare and proportionality analysis. On the facts, Judge Mostyn found Appellant’s consent neither authentic nor enduring; subsequent events vindicated that view. The Supreme Court emphasised that a child’s voice must be heard, but protective orders may still be required.

Holding and Implications

APPEAL DISMISSED.

The Supreme Court confirms that the High Court’s inherent jurisdiction may lawfully authorise local authorities to deprive children of liberty in non-approved placements when statutory secure accommodation is unavailable or unsuitable. A child’s consent is relevant but not decisive. The judgment preserves an essential protective “safety-net,” while underscoring that it is only a stop-gap: systemic resource failures must be remedied by those responsible for children’s services, not left to judicial improvisation.