Northumberland County Council v S (Mother) & Ors

I have listed before me today, at very short notice, a prospective application which is to be made by Northumberland County Council for permission to invoke the inherent jurisdiction of the High Court under Section 100 of the Children Act 1989 and, as it stands, relief within that jurisdiction in relation to a young man, JP, who was born in August 2002, and so he is 14, and will be 15 during the course of the summer. JP is currently the subject of a full care order in favour of Northumberland County Council and his placement (pursuant to that order) has been the subject of three hearings in the course of the last 10 days prior to today: one hearing before the Justices, and two before Her Honour Judge Moir.

The County Council this morning is represented by Ms Wood. The first respondent mother is present at court; she is represented by Ms McKenzie, and JP himself represented by his Children’s Guardian, Ms R, who regrettably cannot be present today. JP is nonetheless represented by his solicitor, Mr Kincaid.

The background to the case can be summarised briefly thus. JP has lived for most of his life in Blyth. He has had a disrupted childhood, experiencing trauma and adversity, and for many years was placed away from his parents but with family members. He had a disrupted education and his family were unable to manage his disruptive behaviours and keep him safe. He was ultimately placed in foster care in December 2013, but that placement broke down in September 2014 due to his absconding. Care proceedings were issued and JP and his siblings were made the subject of interim care orders in May 2016; that was converted into a full care order in respect of JP.

JP was initially accommodated in a residential placement at Noble House (a pseudonym) in Newcastle and, while that placement brought with it some stability in his life, he nonetheless continued to display challenging and threatening behaviour, which on numerous occasions caused the near breakdown of that placement.

Following an escalation in incidents at Noble House, including an occasion when he set fire to a skip outside the home in June 2017, Noble House handed the Local Authority notice indicating that they could no longer manage JP’s behaviour with immediate effect and, at that point, JP was placed in temporary accommodation, a caravan at Priory Garth (pseudonym), whilst alternative appropriate placements could be identified.

I summarise the history in that way. It may be to some extent controversial. I make no finding specifically, but it sets the context in which I must consider this application.

With the breakdown of the placement at Noble House, the Local Authority set about seeking an alternative home for JP, and Ms Wood, on the Local Authority’s behalf, advised me that 50 placements were identified and researched nationwide and all but one declined or were unable to offer JP a placement. The only offer of a placement came from Bracken School (pseudonym), a residential school in Scotland, which specialises in the care and education of children with challenging behaviour.

The Local Authority made an application to the Court for permission to place JP outside the jurisdiction at Bracken School, pursuant to Schedule 2 paragraph 19 of the Children Act 1989 . That application came before Her Honour Judge Moir on 16 June and, at that point, JP was clear that he did not consent to moving to Scotland, a prerequisite of the Court’s ability to make an order under that statutory provision. The judge adjourned the case to Monday of this week, by which time JP had indicated that he would after all agree to the placement, and in the circumstances an order was made on 19 June authorising the authority to place JP at Bracken School in Scotland. It was recorded on the face of the order (so far as I can tell – I have only a draft in front of me), that JP consented to being in Scotland for a period of two months only; the Guardian herself supported the placement at Bracken School, and although the mother, who had not attended the hearing, did not agree to the making of that order, Judge Moir dispensed with her agreement. Judge Moir had concluded that it was in JP’s best interests that he be in residential care in Scotland.

JP was moved to Bracken School immediately after the hearing. Bracken School is not secure accommodation in that it is not ‘accommodation…provided for the purpose of restricting liberty’. It is, as I have earlier described it, a residential school for children who present with challenging behaviour, and it follows, argues Ms Wood, that Section 25 does not apply, even though it is fair to observe, that JP’s behaviours over many years, and particularly latterly, appear to me on the material that I have seen to fall within the category of behaviours contemplated by Section 25(1) of the Children Act 1989 . Be that as it may, there is a jurisdictional impediment to the court making a section 25 order in relation to a placement of a young person in Scotland.

Perhaps predictably, but in any event, JP has found it difficult to settle at Bracken School. He very quickly expressed his wish to return to live back again in his home area, and has texted and telephoned Mr Kincaid, indicating he wants to be away from Scotland. He has broken property there. He has run away. He told Mr Kincaid he needed to get out, he did not want to be there, and that he was very upset by being there. Mr Kincaid alerted the Local Authority to this position on Wednesday evening, and when the matter was brought to my attention yesterday (Thursday), I called the case to be immediately listed before me this morning (Friday).

It is fair to point out, hence my use of the word ‘predictably’, that when JP was first placed at Noble House, he displayed very challenging behaviour, but that was managed over a time, particularly when JP was able to spend time with family or friends; I return to this a little later. Inevitably, it seems to me that JP will take time to settle wherever he is. The critical question in this case at this time is whether he will in fact, in time, settle at Bracken School.

Ms Wood, on behalf of the Local Authority, today invites me to switch jurisdictional horses, and to jettison reliance on Schedule 2 paragraph 19 , in view of the withdrawal of JP’s consent, and now to apply Section 100 of the Children Act 1989 . It is unnecessary for me to decide whether Schedule 2 paragraph 19 was ever the appropriate horse on which to run this particular application. Judge Moir thought it was. I, for my part, raise a question over whether or not a placement such as this represents an arrangement for a child ‘to live’ outside England and Wales, as when one looks more carefully in the language of Schedule 2 paragraph 19 , there is a clear inference to be drawn that the giving of consent is a once and for all event. ‘Has consented’ is the phrase used, not ‘does consent’, an enduring state of affairs; the phrase used is more pertinent to a permanent arrangement ‘to live’ outside England than a temporary one for interim placement, in this particular instance, in a school for children with challenging behaviours.

In the decision of Re X and Y [2016] 3 WLR 1718, the President of the Family Division considered whether Schedule 2 paragraph 19 would be the appropriate horse on which to run an application of this kind, but declined to make a decision or to even express a view. Similarly, I do not for my part need to conclude whether Judge Moir was wrong or that she was right, but I would say that had the application come before me, I would have been far more circumspect about reliance on this statutory provision.

Section 100 of the Children Act is a provision which is reserved for a small minority of cases which cannot otherwise be dealt with under Parts II and IV of statute. Section 100(2) imposes a number of restrictions on the use of the High Court’s inherent jurisdiction, and specifically restricts the use of the inherent jurisdiction so as to make a child who is the subject of a care order a ward of court. Ms Wood indicates that it is not the Authority’s wish that JP be warded. There is no need for that, she maintains, as he is already in the care of the Local Authority. She seeks leave to invoke the jurisdiction because the result which she wishes to achieve for her Authority (placement in a residential school out of the jurisdiction, involving some deprivation of liberty) cannot be achieved through the making of any order other than by the Court’s inherent jurisdiction, and there is reasonable cause to believe that if the inherent jurisdiction is not exercised, the child is likely to suffer significant harm. That is the impact of Section 100(4) .

In this particular application, not only have I been drawn to the authority of Re X and Y , to which I have already referred, I have also considered Re AB (A child: deprivation of liberty) [2016] 1 WLR 1160, in which Keehan J dealt with a not dissimilar situation to that which pertains here, and I have very much in mind what he says at paragraph 30-37 of that judgment. In that decision, Keehan J exercised the court’s inherent jurisdiction in respect of a child who was the subject of an interim care order, which will have the effect of authorising the deprivation of that child’s liberty. I am satisfied that subject to the provisions of Section 100(4)(b) , I have jurisdiction to make the order sought, but the question is: should I do so?

First, I record JP’s wishes. He does not wish to be in Scotland. He does not wish to be so far from home. He wishes and, it may well reasonably be concluded, needs to have a regular relationship with his mother and members of his family, which is not altogether easy if he is placed in a unit remote from public transport, three and a half hours’ drive from Blyth. I record the mother’s opposition to a placement so far away. She wishes the facility for regular visits to JP, for reasons I well understand, and she aspires ultimately to his rehabilitation to her care.

I note with some alarm the very considerable difficulties there have been in managing JP’s behaviour in every type of accommodation other than secure in his short life: family placements, placements with his mother, foster care, residential school close to home. As I earlier indicated, in my judgment, he appears to satisfy the criteria in Section 25 , though the Authority does not seek at this stage an order permitting the placement of JP in a unit which is designed for the purposes of restricting liberty. I bear very much in mind that the sort of unit in which JP is currently placed is a rare one, and placements in such units are extraordinarily difficult to come by, as the history of this particular case bears out.

I note the commitment of the Local Authority to review the placement regularly. I accept the assurance of the Authority that it will facilitate contact between JP and his mother daily by phone and monthly, at least, by direct contact, though I for my part would hope, or may I even say expect, that this should be more regular in order to give due reassurance to JP that his family continue to support him, and that he has not been moved out of the jurisdiction and away from his home area and forgotten. This approach has been key to the success of placement in the past.

I trust that this placement will be, as it certainly could be, a temporary arrangement prior to the rehabilitation of JP back to a placement closer to home. Much depends on JP’s willingness and ability to cooperate with the regime which is imposed for him at Bracken School. I am satisfied that the result which this Authority wishes to achieve cannot be achieved other than by the making of an order under the Court’s inherent jurisdiction, authorising the placement of JP out of this jurisdiction in a residential unit at Bracken School, with deprivation of his liberty, and there is, in the material which I have rehearsed and reviewed, and in the documents which have been presented to me, ample course to believe that if this jurisdiction is not exercised with respect to JP, he is likely to suffer significant harm.

I propose, therefore, to accede to the Local Authority’s application, give them permission to make this application and authorise the placement at Bracken School, notwithstanding JP’s current opposition. It will, in my judgment, be necessary for the Local Authority to make an application to the Inner House of the Court of Session, a petition for the nobile officium , the extraordinary jurisdiction of the Court of Session for orders which effectively mirror the relief which I today grant in respect of JP. That is my judgment.