Factual and Procedural Background
The Plaintiff is a 17-year-old in the care of Company A for seven years and placed at Company B, a residential unit located about 200 miles from the Plaintiff's home. Company A applied to the Family Division under the High Court's inherent jurisdiction for an order authorising deprivation of liberty after a period of escalating, violent and self-harming behaviour by the Plaintiff culminating in an incident on 4 March 2026 that led to arrest. Judge Reardon granted short-term leave and an authorisation until 9 March 2026. On 9 March a different judge (Judge Basu) refused to extend the order and refused leave to apply under the inherent jurisdiction. Company A appealed. This Court granted interim authorisation pending the appeal, heard the appeal, and allowed it, giving a later reserved judgment permitting deprivation of liberty at Company B until 4:00pm on 17 April 2026 and remitting the matter for further Family Division case management.
Legal Issues Presented
- Whether the judge erred in law in refusing Company A leave to apply under the High Court's inherent jurisdiction by treating section 25 of the Children Act 1989 as a viable statutory alternative when no secure accommodation was available.
- Whether the judge erred in fact and law in finding there was insufficient evidence to conclude that the Plaintiff was likely to suffer significant harm if the inherent jurisdiction were not exercised (section 100(4)(b) Children Act 1989).
- Whether deprivation of liberty authorisation for an unregistered placement is permissible where "imperative considerations of necessity" and compliance with Presidential Family Division guidance are satisfied.
- Whether the proposed measures amounted to a deprivation of liberty for Article 5 ECHR purposes and, if so, whether such deprivation is in the Plaintiff's best interests.
Arguments of the Parties
Appellant's Arguments (Company A)
- The judge wrongly treated s.25 Children Act 1989 as an available alternative when, in fact, no secure placement was available and the result sought could not be achieved under s.25 (ground 1).
- The judge wrongly concluded there was no reasonable cause to believe the Plaintiff was likely to suffer significant harm if the inherent jurisdiction were not exercised; harm includes emotional and psychological harm (grounds 2 and 3).
- The judge failed to undertake the required welfare analysis under section 1 Children Act 1989, including the likely consequences of removing the Plaintiff from Company B (ground 6).
- Company A sought an authorisation permitting specified restrictive measures (3:1 staffing ratio when dysregulated; authorised restraint by trained staff as last resort; supervised travel) as necessary, proportionate and in the Plaintiff's best interests.
Guardian's Position (Attorney Wilson)
- The guardian supported the appeal on all grounds, emphasising errors in the judge's s.100(4) analysis: (a) misapplication of s.25 as an available alternative and (b) incorrect assessment of likelihood of significant harm.
- The guardian reported that the Plaintiff had indicated to the guardian that he did not oppose the proposed measures and wished to remain at Company B, though the guardian did not treat that as formal consent.
The opinion does not contain a detailed account of any opposing party's submissions to the effect of maintaining the judge's decision beyond what is recorded in the judge's reasons.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Storck v Germany (2005) 43 EHRR 6 |
Essential components of deprivation of liberty (objective confinement, lack of valid consent, attribution of State responsibility). |
Cited as establishing components; court accepted the proposed arrangements met the Storck criteria. |
| Cheshire West and Chester Council v P [2014] AC 896 |
"Acid test" for deprivation of liberty: continuous supervision and control; inability to leave; inability to consent. |
Cited to confirm that the proposed restrictions amounted to a deprivation of liberty; not disputed. |
| Koniarska v United Kingdom (2000) 30 EHRR CD 139 |
Scope of "educational supervision" under Article 5(1)(d) not limited to classroom settings. |
Referenced in discussion of Article 5(1)(d); contextual background to Article 5 jurisprudence. |
| Re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] Fam 377 |
Meaning of "educational supervision" and permissibility of restricting liberty for a child's development. |
Used to illustrate Article 5(1)(d) interpretive authorities. |
| Re T (A Child) [2021] UKSC 35 |
Permitted use of inherent jurisdiction where secure accommodation under s.25 not available; caution over unregistered placements requiring "imperative considerations of necessity". |
Applied to justify use of inherent jurisdiction where no s.25 placement was available and to require compliance with PFD guidance for unregistered placements. |
| Re E (S.27 Direction) [2025] EWCA Civ 470 |
Exposition that Children Act 1989 created a single route into local authority care and related statutory context. |
Quoted to explain statutory framework and limitations on inherent jurisdiction post-Children Act 1989. |
| Tameside Metropolitan Borough Council v C & Ors [2021] EWHC 1814 (Fam) |
Court may authorise deprivation of liberty under inherent jurisdiction if Art 5 conditions met and order is in child's best interests; best interests requires holistic welfare appraisal. |
Applied to frame the best interests inquiry and to support considering realistic consequences and resource constraints in welfare appraisal. |
Court's Reasoning and Analysis
The Court identified two principal errors in Judge Basu's decision: (1) treating section 25 as an available alternative despite there being no secure accommodation available, and (2) incorrectly concluding there was insufficient evidence to satisfy s.100(4)(b) that the Plaintiff was likely to suffer significant harm if the inherent jurisdiction were not exercised.
The Court applied Article 5 ECHR authorities (Storck; Cheshire West) to accept that the proposed measures amounted to a deprivation of liberty. It analysed the Children Act statutory scheme, section 25 and section 100, and Re T (UKSC) to conclude that where a secure placement is unavailable the inherent jurisdiction may be invoked provided s.100(3)-(4) are satisfied.
On s.100(4)(a) the Court held the judge's approach was too narrow: because no s.25 placement was available and the Plaintiff wished to remain at Company B, the result sought could not be achieved under s.25. On s.100(4)(b) the Court observed that "harm" includes emotional and psychological harm (section 31(9) definition applied by reference to section 105(1)) and, in the context of the Plaintiff's history of escalating behaviour, there was reasonable cause to believe significant harm was likely if no order were made.
In assessing best interests, the Court conducted a holistic appraisal: it considered the history of incidents, the precipitating arrest, the likely risk of future physical and psychological harm, the staff's unwillingness to accept the Plaintiff without authorisation to restrain, progress made by the Plaintiff at Company B and his desire to remain there, Company B's ongoing registration process with Company C, and the absence of an alternative placement. The Court concluded the proposed restrictions were necessary, proportionate, least restrictive and in the Plaintiff's best interests in the short term, subject to specified safeguards (trained staff, minimum force, dignity and proportionality).
Holding and Implications
HOLDING: The appeal was allowed. The Court granted leave under section 100 Children Act 1989 for Company A to invoke the High Court's inherent jurisdiction and declared that it was lawful and in the Plaintiff's best interests that Company A be permitted to deprive the Plaintiff of his liberty at Company B under Article 5 ECHR, authorising that deprivation until 4:00pm on 17 April 2026, subject to the specified measures and safeguards described in the judgment.
Implications: The direct effect is (a) Company A may lawfully implement the specified restrictive measures at Company B until 17 April 2026; (b) those measures are to be the least restrictive, proportionate, used only by trained staff as necessary, and respectful of the Plaintiff's dignity; and (c) the case was listed for further hearing in the week of 13 April 2026 before a full-time Family Division judge for further case management and review. The Court did not purport to set new general precedent beyond applying established authorities (including Re T) to the facts; it emphasised that where secure accommodation is unavailable and the statutory leave criteria are met, the inherent jurisdiction may be used consistent with PFD guidance for unregistered placements.