A Mother v Derby City Council

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 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 the restrictions that are the subject of that authorisation will be applied is a placement that is prohibited by the terms of the Care, Planning, Placement and Case Review (England) Regulations 2010 as amended from 9 September 2021, without cutting across that amended statutory scheme”.

MacDonald J’s conclusion is now challenged by the mother of one of the four young people whose case was before the court. The mother, who was not represented at first instance, was granted permission to appeal by MacDonald J and her appeal has now been presented by Mr Richard Drabble QC and Mr Christopher Barnes.

Before turning to the substance of the appeal itself, it is necessary to describe a further question of law which, whilst current in the first instance hearing, was expressly not determined by MacDonald J. The point turns upon an accepted distinction that exists between the role of the High Court, which is confined to authorising a local authority to deprive a young person of their liberty in particular circumstances, and the role of the local authority which actually makes the placement of the child and implements any restriction of liberty at any particular time. The further question of law which was not answered in the court below is whether the local authority retains the power lawfully to place a child in an unregistered children’s home. The point arises because, whilst placement in “a children’s home” comes within the list of statutorily authorised placements in CA 1989, s 22C(6)(c), such a placement is expressly restricted to a children’s home “in respect of which a person is registered” [emphasis added] under the relevant statutory provision. MacDonald J concluded that, whilst the question of the legality of the placement was undoubtedly one for consideration by local authorities, it did not directly arise in the four cases before the court, where the focus was on the jurisdiction of the court, rather than the lawfulness or otherwise of any local authority’s subsequent actions.

As will become apparent, that secondary, unaddressed, point of law lies at the centre of the present appeal and must now be determined by this Court.

Mr Drabble and Mr Barnes rely upon two short grounds of appeal in support of the general contention that in exercising the inherent jurisdiction of the High Court to authorise the deprivation of liberty of this child in an unregistered children’s home the judge fell into error:

The appeal is opposed by Ms Lorraine Cavanagh QC and Mr Sean Spencer for Derby City Council, and acting for Tameside Metropolitan Borough Council as interveners, and by Mr Brendan Roche QC, leading Ms Kathleen Hayter, for the children’s guardian. It is also opposed by Mr Jonathan Auburn QC, leading Ruth Kennedy, on behalf of the Secretary of State for Education and Ms Joanne Clement of behalf of OFSTED (which is the statutory registration and regulation body in this context).

The Statutory Scheme for the placement of children who are looked after by local authorities is contained within CA 1989, Part III in so far as it relates to England. The position in Wales is governed by the Social Services and Well-being (Wales) Act 2014. The current appeal relates entirely to the English provisions and the court is not, therefore, concerned with the parallel Welsh regime.

CA 1989, s 22(3) places on local authorities a duty to safeguard and promote the welfare of any child looked after by a local authority. Further, CA 1989, s 22A places a duty on a local authority to provide a looked after child with accommodation.

CA 1989, s 22C stipulates the “ways in which looked after children are to be accommodated and maintained.” Section 22C provides:

The term “children’s home” in s 22C(6)(c) is defined in CA1989, s 105(1) as having the same meaning as in the Care Standards Act 2000. The Care Standards Act 2000, s 1(2) defines “children’s home” widely, stipulating that an establishment in England is a children’s home if it provides care and accommodation wholly or mainly for children. An establishment will not be a children’s home merely because a child is cared for and accommodated there with a parent or relative of his or a foster parent. Nor will it be a children’s home if it is a hospital within the meaning of the National Health Service Act 2006, or is a residential family centre. An establishment is not a children’s home if it is a school, unless the conditions in s 1(6) of the 2000 Act are satisfied. Finally, by s1(4A) of the 2000 Act, an establishment will not be a children’s home if it is of a description excepted by the Children’s Homes (England) Regulations 2015, r 3.

Whilst there is no definition of “care” in the Care Standards Act 2000, submissions both at first instance, and on appeal, have been made on the basis that it is hard to contemplate a placement which is a candidate for a DOL authorisation in the High Court which does not involve the child receiving “care” within the proposed accommodation for the purposes of the definition of “a children’s home”.

With respect to “other arrangements” not listed at subsection (6)(a)-(c), under CA 1989, s 22C(6)(d), regulations made for the purposes of s 22C include the Care, Planning, Placement and Case Review (England) Regulations 2010. Prior to 9 September 2021, r 27 of those regulations read as follows:

Schedule 6 referred to in r 27 prior to amendment is short and sets out a tick-box list of various general elements related to the suitability of any such unregulated accommodation.

The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 made two amendments to r 27. First, in the opening phrase “an unregulated setting” is removed and substituted by “in accordance with other arrangements”. Secondly, paragraph (a) is removed and replaced by:

There is a trap for the unwary in the context of placements for looked after children which arises from the use of two similarly sounding phrases, namely “an unregistered placement” and “an unregulated setting” (as in r 27 before its amendment). I shall explain the distinction between these two after completing this recital of the relevant statutory provisions by setting out the new r 27A which came into force on 9 September 2021:

Having referred to the need for caution when deploying the terms “registered”/“unregistered” and “regulated/unregulated” in this context it is necessary to do no more than explain that the Children’s Homes (England) Regulations 2015 apply to “children’s homes in England” (reg 1(2)(a)). It follows that any accommodation which falls within the definition of “children’s home” within Care Standards Act 2000, s 1(2) will be covered by the Children’s Homes (England) Regulations 2015 and will therefore be “regulated”.

Any person who carries on or manages an establishment or agency (including any children’s home) without being registered under Care Standards Act 2000, Part II will be guilty of a criminal offence (CSA 2000, s 11(1)). It follows that whilst accommodation will become a “children’s home”, and therefore will immediately be “regulated”, the overall cohort of “children’s homes” will, at any particular time, include, as sub-categories, those homes which are “registered” and those which are not, or not yet, registered – and are therefore “unregistered”.

The distinction drawn above is of importance in the present appeal as a result of the wording of CA 1989, s 22C(6)(c) which restricts those children’s homes coming within the definition of “placement” in that section to those “in respect of which a person is registered under Part II of the Care Standards Act 2000”. As will be seen, the central submission made on behalf of the Appellant is that it is not lawful for a child to be placed under s 22C in an “unregistered” children’s home.

On 12 November 2019, as President of the Family Division, I issued ‘Practice Guidance: Placements in unregistered children’s homes in England or
unregistered care home services in Wales’. In paragraph 1 I described the primary focus of the Guidance:

On 1 December 2020, the 2019 Guidance was supplemented by an addendum providing that any court order in such cases must require the local authority immediately to notify OFSTED (or the Care Inspectorate Wales) of the circumstances of the case and to provide OFSTED with a copy of that order and the judgment of the court .

The decision of the Supreme Court in Re T (A Child) [2021] UKSC 35 was of central importance in the judgment of MacDonald J, as it has also been in the present appeal. The primary issue in Re T was whether it was a permissible exercise of the inherent jurisdiction of the High Court for the court to authorise deprivation of the liberty of a child in circumstances where it is said that the child’s welfare requires it.

The Supreme Court unanimously held that the use of the inherent jurisdiction to authorise the deprivation of liberty in cases like the present is permissible. The court stressed the jurisdiction should be confined to cases where ‘imperative considerations of necessity’ justified its deployment. Lady Black gave the main judgment, with which Lord Lloyd-Jones, Lord Hamblen and Lord Stephens agreed, and Lord Stephens gave a short concurring judgment, with which Lady Black, Lord Lloyd-Jones and Lord Hamblen agreed. Lady Arden gave a short judgment setting out her additional reasons for agreeing with the judgments of Lady Black and Lord Stephens.

For the purposes of this appeal, it is not necessary to describe the content of the wide-ranging judgments in Re T at this stage, before describing the more narrowly based point that is at the heart of this appeal. Reference will be made to relevant passages from the judgments in Re T during the course of the description of the submissions made to this court which now follows.

The central premise behind both grounds of appeal, which turns, first, on the assertion that only a registered children’s home comes within s 22C(6)(c), and, secondly, that a children’s home is not one of the narrowly defined categories of placement in s 22C(6)(d), is that, consequently, a placement in an unregistered children’s home is unlawful. That assertion supports the submission that it cannot be possible for the High Court to be satisfied that any such placement will be in accordance with ECHR, Art 5, which requires compliance with national law, and the substantive and procedural rules thereof (Ground 1). Secondly, because of the unlawful nature of a placement in an unregistered children’s home, the use of the inherent jurisdiction to authorise such a placement establishes an impermissible clash with the statutory scheme.

The Appellant’s counsel set out their interpretation of the statutory scheme, as it is now amended, with commendable clarity at paragraph 36 of their Skeleton Argument as follows:

Orally, Mr Drabble submitted that the statutory scheme, following amendment, is now very clear and a placement in an unregistered children’s home falls outside that scheme and is therefore unlawful, meaning that placement of a child under the age of 16 in an unregistered children’s home is ultra vires with respect to a local authority’s power.

Mr Drabble relies particularly on his submission that the list of categories of placement in s 22C(6) is a “closed list”. An unregistered children’s home falls outside any of the categories listed in s 22C(6)(a)-(c), and the list of “other arrangements” falling within subsection s 22C(6)(d) is now also closed by the new regulation r 27A in so far as it relates to under 16 year olds. Mr Drabble submits that the whole point of the new regulations is to outlaw placement of an under 16 year old in an unregistered children’s home.

Mr Drabble accepts that the Supreme Court decision in Re T (to which I will turn in more detail later) held that, despite the need for a children’s home to be “registered” to come within s 22C(6)(c), it was not unlawful for the High Court to exercise its inherent jurisdiction to authorise DOL because of two separate distinctions that were drawn by the Supreme Court Justices. First, there is the distinction, which is accepted by Mr Drabble and all parties in this appeal, between the role of the court in authorising a deprivation of liberty, and the, separate, role of a local authority which actually makes the particular placement of the child. The second distinction drawn by the Supreme Court, and, submits Mr Drabble, available to be drawn on the law as it was prior to September 2021, was between the local authority which made the placement, and, separately, the manager of the home who is an individual who is required to be registered. It is that individual who will be committing a criminal offence if there is no registration (as will the owner), rather than the local authority that makes the placement.

Mr Drabble’s case is that these two distinctions no longer apply. Taking them in reverse order, in addition to any criminality attaching to the children’s home manager if there is no registration, it is now, he submits, simply unlawful for the local authority to make a placement in an unregistered children’s home. Secondly, the distinction between the role of the court in authorising, and the role of the local authority in the placing, whilst still existing, no longer isolates the court from the legal impact of the underlying failure to register. This is because it is now, on his submission, the local authority which is acting unlawfully, and the court cannot be satisfied that any placement that it authorises in such a children’s home will accord with national law and therefore be compatible with the rights protected by ECHR, Art 5.

In that manner, Mr Drabble seeks to distinguish the legal landscape that now applies with respect to unregistered children’s homes, from that which was considered and accepted by the Supreme Court in Re T.

Mr Drabble made the following seven short points in seeking to make good this submission:

In response to questions from the court, Mr Drabble accepted that Lady Black and Lord Stephens did not regard the placement as ultra vires, notwithstanding that a criminal offence would be committed by the operator of the children’s home. Finally, and more generally, despite the clarity of his submissions and the sharp edged description of the strict criteria that are now said to apply, Mr Drabble accepted that, if the appeal were allowed, his client was not asking the Court to direct termination of the placement. Further, he accepted that the circumstances of a child in any particular case may be so parlous as to establish a breach, or potential breach of ECHR, Art 2 or Art 3 relating to the right to life and the right not to be tortured or subjected to inhuman or degrading treatment.

The ten carefully crafted steps set out in paragraph 36 of the Appellant’s skeleton argument (see paragraph 29 above) rest upon the validity of the first three propositions in that sequence, namely that the list in s 22C(6) is a “closed list” into which a local authority must place a child, that an unregistered children’s home cannot fall within s 22C(6)(c) and, thirdly, that any class of accommodation not falling within s 22C(6)(a)-(c) must fall within s 22C(6)(d).

If those first three premises are established then the argument proceeds on the basis that placement in an unregistered children’s home is within s 22C(6)(d) and therefore covered by r 27 and, now, r 27A and, as an unregistered children’s home not mentioned in the closed list in those two regulations, such a placement is not permitted.

It is by this means that the question of law that was expressly not decided by MacDonald J at first instance as to the legality of placement in an unregistered children’s home must now be determined within the compass of this appeal. The need so to confront the issue was squarely accepted by Ms Clement, counsel for OFSTED, who made the following helpful oral submissions.

As a preliminary point, Ms Clement explained that OFSTED recognises that, in certain emergency situations, exceptional circumstances may arise where it is not possible to meet a child’s needs in a children’s home that is currently registered. Whilst the High Court should not ordinarily authorise a deprivation of liberty in an unregistered children’s home, the court, as MacDonald J has held in a subsequent judgment in this group of cases, has jurisdiction to do so in an emergency – but should not ordinarily countenance the exercise of that jurisdiction where it is clear that the owner of the home either will not, or cannot, apply for registration: see Derby CC v CK and Others (Compliance with DOL Practice Guidance) [2021] EWHC 2931 (Fam) at [94].

The Supreme Court in Re T held that the High Court can invoke the inherent jurisdiction to authorise a deprivation of liberty in respect of placement outside the statutory scheme, or in a placement prohibited by the scheme or otherwise ultra vires, but only subject to the conditions that the Supreme Court laid down, including the condition that the placement is to be brought within the statutory scheme as soon as possible and in accordance with the President’s Guidance. Such conditions limit the extent to which the court’s order authorising deprivation of liberty cuts across the statutory scheme. That principled approach, as determined by the Supreme Court, binds this court and gives the answer to the difficulty identified by the Appellant and, submitted Ms Clement, that approach holds and provides jurisdiction for the High Court even if the Appellant is right that there is in fact a statutory prohibition against placing a child in an unregistered children’s home.

Ms Clement’s more detailed explanation of the correct statutory construction proceeded as follows.

Ms Clement moved on to submit that if the construction she proposes means that in some extreme circumstances a child’s rights under Art 2 or Art 3 of the ECHR would be breached because a local authority is not able to place the child in an unregistered children’s home, then the Human Rights Act 1998 comes into play with respect to the local authority’s power, nevertheless, to make a placement in an unregistered home.

Ms Clement accepts that HRA 1998, s 6, which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, is insufficient to give the local authority a freestanding power to make a placement which is outside the statutory scheme. She therefore relies upon HRA 1998, s 3 relating to the interpretation of legislation which by s 3(1) provides that:

To achieve compatibility Ms Clement submits that words need to be read into s 22C(6) to avoid a breach of a child’s Art 2 or Art 3 rights by enabling a local authority to place the child in an unregistered children’s home. The requirement to read in such words will only arise where the operational duties established by Art 2 or Art 3 are triggered by the circumstances of a case, and any placement thus permitted in an unregistered children’s home can only be maintained for the minimum time necessary to achieve registration, thereby bringing the placement into the statutory scheme.

Ms Clement submits that, if the jurisdiction under HRA 1998, s 3 can be deployed in the manner she describes, then the Court is not in the territory described in paragraph 36 of the Appellant’s skeleton argument as there would be no statutory prohibition, and the central premise of the Appellant’s argument cannot be made out. However, Ms Clement went on to assert that, even if the Appellant is correct and there is a statutory prohibition, the overall legality of the placement is unaffected as that very circumstance was dealt with and approved by the Supreme Court in Re T.

In making good her secondary submission, which relies on Re T, Ms Clement referred to ECHR, Art 5(1)(d) which reads:

Ms Clement submits that the Supreme Court in Re T held that the focus of Art 5(1)(d) was the existence of “the lawful order”. Once an order has been made under the inherent jurisdiction, where the court has jurisdiction, that, said Ms Clement, is the end of it. There is no focus under Article 5, or in the Strasbourg jurisprudence, on whether the underlying placement complies with national law. A local authority does not need a court order in order to place a looked-after child; indeed it has a duty or a power to place irrespective of any court order. The court order is needed where the young person is to be deprived of their liberty outside the statutory secure accommodation regime.

Ms Clement submitted that the argument now advanced on behalf the Appellant by Mr Drabble is on all fours with the argument advanced by the Appellant before the Supreme Court in Re T. The submission that the inherent jurisdiction could not be used to authorise a deprivation of liberty in a placement which cut across the statutory scheme would breach Article 5 because it did not comply with the requirements of national law was rejected.

In the course of her judgment Lady Black expressly considered the statutory scheme for secure accommodation under CA 1989, s 25. Between paragraphs 130–138 Lady Black analysed and then adopted a narrow definition of “secure accommodation” under s 25 which was, very largely, confined to purpose built secure accommodation that had been approved by the Secretary of State (whilst not dismissing the possibility of there being other purpose built accommodation which met the criteria but was, for some reason not approved.) Based on that narrow interpretation, Lady Black’s primary conclusion in this part of her judgment was that if a placement was not “secure accommodation”, then there can be no question of the use of the inherent jurisdiction cutting across the statutory scheme in s 25.

But, Ms Clement points out, Lady Black went on, at paragraph 139, to accept that there may be placements where the “primary purpose” can properly be said to be “secure accommodation” within the meaning of s 25, but which cannot be used as such because they are children’s homes and have not been approved by the Secretary of State in accordance with Children (Secure Accommodation) Regulations 1991, reg 3. When considering that potential category of placements Lady Black observed:

However, after due consideration, Lady Black’s conclusion was plain (at paragraph 141):

Thus, submits Ms Clement, Lady Black expressly agreed that, even where there is a statutory prohibition, it is still permissible to use the inherent jurisdiction in certain tightly defined circumstances. Lady Black considered these matters expressly at paragraphs 143-145:

The condition described by Lady Black, namely the existence of “imperative considerations of necessity”, was endorsed by the other Supreme Court Justices and expressly so by Lord Stephens JSC.

Lady Black expressed herself as being reinforced in her view by the scheme established under the President’s Practice Direction, which was developed with OFSTED and the Care Inspectorate of Wales, and which, rather than outlawing a placement in an unregistered children’s home, seeks to ensure that where the Court authorises such a placement, registration is sought expeditiously.

Finally, in terms of Re T, after Lady Black had expressly dealt with placement in unregistered children’s home, she observed, at paragraph 150, that:

Ms Clement observed that Mr Drabble’s references to Re T predominantly focussed upon quotations from the judgment of Lady Arden. In so far as Lady Arden dealt with additional maters, not covered in the judgments of the other Justices, it cannot be said that the other members of the Court were tacitly in agreement with Lady Arden. In any event, Lady Arden was in agreement with the primary judgments of Lady Black and Lord Stephens and such observations as Lady Arden went on to make in her own judgment, cannot be said to be authority.

Finally, by reference to the Appellant’s two grounds of appeal, Ms Clement submitted that, once the judgments in Re T are considered, it is plain that placement in an unregistered children’s home is not unlawful in the context of Article 5 or impermissible in so far as the authorisation made by the High Court may be outside the range of placements included within the statutory scheme.

Although OFSTED is an intervenor in this appeal, I have quoted the submissions of Ms Clement in detail as, in my view, they engaged directly with the Appellant’s case regarding placement in an unregistered children’s home and did so in clear terms.

Turning to the parties in the case, Ms Lorraine Cavanagh QC, for the two local authorities, submitted that, where the placement being considered is not covered by s 22C(6), the child falls outside the statutory scheme but the local authority remain subject to the overriding duties established by s 22(3)(a) and s 22A to safeguard and promote the child’s welfare and to provide the child with accommodation.

Ms Cavanagh, who made her submissions prior to those of Ms Clement which focussed on the power to read words into the statutory scheme under HRA 1998, s 3, drew attention to the approach taken by MacDonald J at first instance at paragraph 76:

In common with the submissions of Ms Clement, Ms Cavanagh submitted that an unregistered children’s home is outside s 22C(6)(c) and did not fall within (d) either. She submitted that such a placement is, therefore, outside the statutory scheme all together.

Ms Cavanagh submitted that it was not possible to argue, as the Appellant seeks to do, that the placement in this case had no legal basis in domestic law. The deployment by the High Court of its inherent jurisdiction, which has now been expressly approved in this context by the Supreme Court, is part of domestic law and therefore any such deprivation of liberty authorised by the High Court complies with the necessary element of legality in the domestic context.

For the Secretary of State for Education, Mr Auburn QC submitted that the insertion of the amendment to the Regulations in September was intended to address unregulated accommodation, and not unregistered accommodation. Mr Auburn sought to argue that, whilst an unregistered children’s home is not expressly within s 22C(6)(c), it is a placement that should be within that sub-subsection, but cannot come within it because of the lack of registration. That circumstance does not mean that such a placement is to be included within sub-subsection (d) and such placements never were considered to be in (d). The amendments to the Regulations, which are limited to sub-subsection (d), therefore do not have any impact upon unregistered children’s home placements as such a placement does not come out of the ‘territory’, to use Mr Auburn’s word, of sub-subsection (c) as a consequence of non-registration.

Despite his divergence in interpretation of the statutory scheme from that offered by Ms Cavanagh and Ms Clement, Mr Auburn is at one with the submissions of the local authorities and of OFSTED in asserting that a placement in an unregistered children’s home is permissible for a short time where that is the only option available to the local authority and it is necessary to avoid a breach of ECHR, Art 2 and/or Art 3. He submits that the legal context is unaffected by the introduction of the new Regulation and that when the matter is properly considered the outcome will be the same as that reached by the Supreme Court in Re T.

In response Mr Drabble took the Court to two passages in the judgment of Lady Arden which drew attention to the fact that placement in unregistered accommodation, which was often urgently created as a “bespoke” and highly specialised solo placement, and was therefore in a “very limited and exceptional class of case”. Mr Drabble drew particular attention to paragraph 182:

On this point, Ms Clement, who was counsel for the Secretary of State for Education before the Supreme Court in Re T, respectfully suggested that Lady Arden, in the passage quoted from paragraph 182 of her judgment, may have misread the written submission to which that paragraph refers. The point was dealt with solely in written argument submitted months after the oral hearing. Ms Clement has now provided the Court with a copy of her written submission and the relevant paragraph reads:

Ms Clement submits that the passage in her submission to the Supreme Court related to “unregulated accommodation”, and therefore she submits within s 22C(6)(d), and not “an unregistered home”, being the category referred in paragraph 182 of Lady Arden’s judgment.

Mr Drabble summarised his submission on the basis that it was clear that a regulated, but unregistered, children’s home had been previously treated as being within sub-subsection (d). The content of that sub-subsection can be controlled by subsequent regulations. Prior to September 2021 the regulations did not limit unregistered children’s homes but, relying upon Lady Arden’s judgment, Mr Drabble submitted that now such placements are caught and are plainly prohibited.

In response to the submissions of the other parties to the effect that the Supreme Court judgments in Re T expressly deal with placement in an unregistered children’s home, Mr Drabble responded that that is not so and that Lady Black never stated that she was dealing with a placement that was prohibited by statute. Finally, Mr Drabble submitted that if this Court were to conclude that there is incompatibility between the statutory regime and the requirements of ECHR, Art 2 or Art 3 there was no need to “read in” wording under HRA 1998, s 3 and that the better course would be to disapply the new regulations and to hold that the previous regime was compatible with the ECHR in the manner permitted under HRA 1998, s 6.

Following the oral hearing, the court issued an order recording that the appeal was dismissed. I will now set out my reasons for reaching that conclusion.

The careful and logically developed argument presented by Mr Drabble and Mr Barnes rests upon the contention that placement of a child under the age of 16 years in an unregistered children’s home is now prohibited within the statutory scheme in its amended form. Such a placement is therefore unlawful and, if made by a local authority, would be ultra vires the authority’s powers. In distinction with the legal context that was in the contemplation of the Supreme Court in Re T, where the element of unlawfulness was one step removed and related to the potential criminality of a home owner who did not register, the Appellant submits that where it is the local authority that would be acting unlawfully, the High Court cannot have jurisdiction to authorise such a placement.

I am persuaded that the Appellant’s case fails for two separate reasons. First, I accept the submissions on behalf of OFSTED and the local authorities that placement in an unregistered children’s home is, and has always been, wholly outside the statutory scheme, and not therefore within s 22C(6)(d) as asserted by the Appellant. As a result, the recent amendments, which relate to placements within sub-subsection (d), have no relevance to placement in an unregistered children’s home. The fact that placements were from time to time being made in unregistered children’s homes in these challenging cases was expressly before the Supreme Court, and was the subject of the President’s Guidance. The authority of Re T squarely dealt with the issue and approved the use of the inherent jurisdiction in such cases where there were imperative circumstances of necessity.

The second reason for rejecting the Appellant’s case is that, even if it were the case that placement in an unregistered children’s home was prohibited by the statutory scheme (which I have concluded is not the case), that question was, again, directly considered and determined in Re T. All of the Justices agreed with Lady Black that, where it is necessary to do so to meet the overarching needs of the child (or to protect the safety of others), the inherent jurisdiction of the High Court must be available, notwithstanding that the underlying placement is prohibited by statute.

The staged submissions of Ms Clement analyse the issues accurately and correctly. I have set them out in full in paragraph 42 and I now endorse each step in the chain without the need to repeat the entire sequence here. A number of points do, however, merit emphasis.

It is not possible, on an ordinary approach to construction, to read s 22C(6) as expressly including unregistered children’s homes. They are plainly excluded from sub-subsections (a)-(c) in that they cannot fall into the first two categories and, as they are not registered, cannot be within (c). Placements of this type have always required registration: s 22C(6)(c) makes express reference to placement in a registered children’s home, making clear that such placements are subject to the regulatory regime specifically designed to safeguard and protect some of the most vulnerable children. I accept, as Mr Auburn submitted, that (c) is the territory within s 22C(6) which relates to children’s homes and, if unregistered children’s homes were to be covered in the subsection it would be in (c), and not elsewhere.

I reject stage (d) in the Appellant’s staged argument which asserts that ‘all other classes of accommodation, which do not fall within s 22C(6)(a)-(c), fall within the ambit of s 22C(6)(d)’. If unregistered children’s homes are within (d), then the purpose of (c) falls into question; why, if an unregistered home is potentially lawful under (d), is it necessary to have a separate category for registered homes in (c). Plainly it would not be, and the regulatory regime carefully designed by Parliament to secure the welfare and protection of the most vulnerable children in registered homes would be undermined and capable of being circumvented. In my judgment unregistered children’s homes do not fall within (d) as “other arrangements”.

Further, insofar as some local authorities may, as Mr Auburn submitted, have been operating, as a matter of practice, on the basis that unregistered homes did, indeed, fall into s 22C(6)(d), that development created a mischief which allowed placements to be made which, if that interpretation were correct, would escape from the requirement of registration. Regulation 27A made clear that practice was to stop, but it does not alter the conclusion that unregistered children’s homes do not fall within sub-section (c) as a matter of ordinary domestic statutory construction, and there is nothing to suggest that Parliament ever intended to permit local authorities to place children in unregistered children’s homes. The Secretary of State’s assertion that unregistered children’s homes have never been considered as ‘other arrangements’ under sub-subsection (d) supports the overall conclusion that Ms Clement’s interpretation is correct.

The “other arrangements” referred to in s 22C(6)(d) are therefore arrangements other than those with a relative, friend or other connected person, or a local authority foster parent or in a children’s home. This conclusion is supported by Ms Clement’s submission, which I accept, to the effect that placement in an unregistered children’s home has been unlawful since 2000 and Parliament cannot have intended to create a lawful category for such placements (without expressly saying so) under the regulations made some years later.

From those central conclusions, which establish that unregistered children’s homes have never been covered by s 22C(6)(d), it follows that the position of such homes is unaffected by the amendments to the regulations that came into force in September 2021 relating to children under the age of 16 which are limited to placements that do fall within sub-subsection (d).

Standing back, the reality for social workers and other professionals dealing with young people who are exhibiting behaviour which is dangerous to themselves or others, and where there is a requirement for that behaviour to be safely contained, is that it is often simply not possible to find a suitable, bespoke, placement which fits within the statutory scheme. It is beyond contemplation that strict adherence to the regulatory scheme should prevent a young person in such a parlous situation being accommodated in a placement that is outside the statutory rules, at least for a short time, if one is available, and is the only option for protecting the young person.

Over and above the regulatory framework there is a higher order of requirement and duty arising from the positive obligations placed upon the State, in the form of a local authority and the court, by ECHR, Art 2 and Art 3, and upon a local authority by CA 1989, s 22(3) and 22A. It was to those duties that Lady Black must have been referring when she encapsulated the rationale justifying such placements at paragraph 145:

It is, however, not necessary for this court to traverse territory that has already been comprehensively covered by the Supreme Court in Re T in a decision which is plainly binding upon us. Once it is established that placement in an unregistered children’s home is not within s 22C(6)(d), the legal context is unchanged from that which was before the Supreme Court and there is no question of a deprivation of liberty order cutting across the statutory scheme. The judgments of Lady Black and Lord Stephens expressly dealt with placement in an unregistered children’s home, which was the category of home in which T had been first placed. It is to such placements that the President’s Guidance, which was seen as central to the legal context by the Supreme Court, is addressed. The judgments in Re T endorse the exercise of the inherent jurisdiction to authorise deprivation of liberty with respect to a placement in an unregistered children’s home, where imperative conditions of necessity justify doing so and there is no alternative available.

Approached in this manner, Mr Drabble’s submission that a placement that is prohibited by the statutory scheme, and therefore not ‘prescribed by law’, as is required by ECHR, Art 5, falls away. The Supreme Court has held that the exercise of the jurisdiction of the High Court in these cases is lawful under the common law. The exercise of the jurisdiction is therefore ‘prescribed by law’ and an order made by the High Court authorising DOL is a ‘lawful order’ of the type required by Art 5(1)(d). There is no basis for distinguishing this case from that considered in Re T.

In like manner, this court is bound by Re T to accept that, where a particular placement may be expressly prohibited under the statutory scheme, for example use of ‘secure accommodation’ in the circumstances described by Lady Black at paragraph 141, even then the High Court retains jurisdiction to authorise deprivation of a young person’s liberty. On the basis of my primary conclusion, which is that, rather than being prohibited by the statutory scheme, placement in an unregistered children’s home is simply outside it, the need to consider the second point does not arise. If, however, it did then, again, the Supreme Court decision in Re T provides a comprehensive answer which is binding upon this court.

With due respect to the short concurring judgment of Lady Arden in Re T, in which additional reasons for dismissing the appeal were given, and upon which Mr Drabble relies so heavily, it cannot be said that the other four members of the Supreme Court were in agreement with or otherwise endorsed those additional matters.

On the central point of law upon which this appeal turns my conclusion is that where a local authority places a child under CA 1989, Part III in an unregistered children’s home, that placement is outside the statutory scheme established by CA 1989, s 22C and the regulations. The Supreme Court determined in Re T that the High Court nevertheless has jurisdiction, in an appropriate case, to authorise that restrictions may be placed on the liberty of a young person placed in such a placement where imperative conditions of necessity justify doing so.

We have found that the scheme does not allow unregistered placements, but does not expressly prohibit them. In those circumstances, as in Re T, where conditions of imperative necessity require, the common law steps in and allows the High Court to exercise its inherent jurisdiction. That exercise of the inherent jurisdiction is not in breach of Art 5 and nor does it cut across the statutory scheme. As it is not the High Court that is making the placement, the exercise of the inherent jurisdiction is not part of the statutory scheme at all. In this respect, the situation is exactly as it was in Re T where the Supreme Court did not feel the need to read any words into the statute.

In those circumstances there is no need to read words into the statutory scheme to enable it to be exercised.

For the reasons that I have now given, I concluded that the appeal must be dismissed.

I agree.

I also agree.