A Mother v Derby City Council

Sir Andrew McFarlane, President of the Family Division :

On 9 September 2021, the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 came into force amending the Care Planning, Placement and Case Review (England) Regulations 2010 . The amended regulations make it unlawful for a Local Authority to place a looked after child in accommodation other than that which is expressly stated in Children Act 1989, s 22C(6) (a) to (c) (‘CA 1989’) or stated within the new r 27A.

In a judgment delivered on 8 September 2021, Mr Justice MacDonald, after hearing applications to authorise the deprivation of liberty of four young people, each in the care of different local authorities, but who were each under the age of 16 years, considered the following central question of law:

“The question of law before the court is whether it remains open to the High Court to authorise, under its inherent jurisdiction, the deprivation of liberty of a child under the age of 16 where the placement in which the restrictions that are the subject of that authorisation will be applied is prohibited by the terms of the amended statutory scheme.”

The context within which the question considered by MacDonald J arose was the, sadly, now familiar one of a young person whose behaviour or other circumstances are such that the welfare of the young person requires that their liberty is restricted to an extent that would otherwise infringe their ordinary right to freedom which is enshrined within European Convention on Human Rights, Art 5 (‘ECHR’). In such cases the High Court has assumed jurisdiction to authorise the “deprivation of liberty” (“DOL”) of the young person to the extent that to do so is necessary, proportionate and in their overall welfare interests.

The lawfulness of the High Court’s assumption of jurisdiction to authorise DOL in the case of children, generally, was considered by the Supreme Court in the case of Re T (A Child) [2021] UKSC 35 ; [2021] 3 WLR 643 . The Supreme Court held that it was indeed lawful for the High Court jurisdiction to be deployed where the circumstances of a particular case established “imperative conditions of necessity” (a phrase used by Lady Black at paragraph 145 and endorsed by the other Supreme Court Justices).

MacDonald J concluded, at paragraph 68, that “it remains open to the High Court to authorise under its inherent jurisdiction the deprivation of liberty of a child under the age of 16 where the placement in which