A Local Authority v LB & Ors

The local authority sought continuation of an order to authorise the deprivation of liberty of a 15 year old under a care order in a placement. She wanted to return to live with her mother.

(i) Exploring s.25 accommodation

Rather than considering whether LB met the criteria for a secure accommodation order under s.25 Children Act 1989, and if so whether such accommodation was available, the local authority applied under the inherent jurisdiction. DHCJ Lock held:

12. I consider that, consistent with the approach taken by the Supreme Court in Re T, s25 accommodation and DOLS orders should not be seen as alternatives to be used by local authorities at their option. Where a child could be accommodated in secure accommodation under the s25 route, that option should be used where available. Use of the inherent jurisdiction should thus be limited to cases where a local authority provides clear evidence to explain why the s25 statutory framework, with its protections for the child, has not been used.

(ii) Permission for inherent jurisdiction

Permission to invoke the inherent jurisdiction requires, inter alia, “reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm”: s100(4) Children Act 1989. In this case there was no evidence of any such harm when she previously went back to live with her mother:

16 … I consider that evidence has to provided which allows the court to confidently conclude that the child is “likely to suffer significant harm” on the facts of a case. It is not sufficient for the court to be provided with general concerns about the parents or even the risks to which the child would be exposed if she were to return home because the court needs to be satisfied, bearing in mind the test in s31(10) of the Children Act 1989, if any harm is likely to be significant.

The court adjourned the application for the social workers to provide further evidence on the statutory test.

(iii) Grounds for detention

Article 5(1)(d) ECHR permits “the detention of a minor by lawful order for the purpose of educational supervision”. On the other hand, the local authority accepted that, at least to date, the basis relied upon was a welfare reason and, as the court decided, “depriving a child of their liberty for pure welfare reasons or to prevent a child absconding could not come within article 5(1)” (para 20). After discussing the relevant ECtHR and domestic case law on educational supervision, DHCJ Lock held:

25. I fully accept that the term “educational supervision” in article 5(1) has to be widely interpreted and is far wider than formal classroom based education. However, whilst educational supervision encompasses a wide concept, in my judgment it cannot be wholly equated with a child’s welfare and restrictions and a deprivation of liberty cannot be justified under this part of the convention primarily to prevent a child absconding. A Local Authority is fully entitled to advance a case to say that a child has been accommodated in a specific placement where the purpose of the placement is to provide educational support to the child across a wide range of life skills and to show that sufficient resources have been allocated to the placement so as to ensure that the education is a central focus of the placement. As part of that case, it could show that appropriate trained staff have been allocated so as to ensure that this educational provision is delivered. It is also open to a Local Authority to provide evidence to show that (a) in the particular circumstances of the case, this educational support can only be delivered to the child if the child is subject to restrictions on his or her liberty, (b) that those restrictions amount to a deprivation of the child’s liberty and (c) that this is both necessary and proportionate. However, absent such evidence, I do not see how a court could properly conclude in a case like the present that the matter comes within article 5(1)(d) as interpreted by the ECtHR in the various cases set out above.

Given the lack of evidence justifying it, there could be no authorisation to deprive liberty on this ground, and the case was adjourned for two weeks for further evidence.

Comment

This case makes clear that “best interests” or “welfare reasons” cannot justify a child’s deprivation of liberty under Article 5(1). It emphasises the importance of applying one’s social work mind to the statutory scheme in s.25 first, before contemplating recourse to the inherent jurisdiction. And, if permission is granted, it helpfully sets out the educational evidence required if detention on the grounds of educational supervision is to be made out.