The Department for Education published a research report, ‘Local Authority use of secure placements’ in December 2016. The executive summary defined secure children’s homes (SCHs) as specialist placements authorised to care for children in a locked setting. The report stated that in these cases, an application must be made to a family court under s 25 of the Children Act 1989 to authorise the child’s detention.

Due to a shortage in SCHs, a practice developed of local authorities applying to the High Court to authorise the deprivation of liberty of a young person under the inherent jurisdiction and in placements not authorised for that purpose. In T (A Child), the High Court authorised the deprivation of her liberty in two separate non-statutory placements. The situation relating to unregulated placements has been described in stark terms (Unregulated: Children in care living in semi-independent accommodation, September 2020, Children’s Commissioner Anne Longfield OBE) and have included short-term holiday lets, mobile homes and static caravans (In Re S (Child in Care: Unregistered Placement) [2020] EWHC 1012, per Cobb J). In taking her case to the Supreme Court, T argued that use of the inherent jurisdiction of the High Court to authorise a local authority to deprive a child of her liberty is not permissible.

Concerns about this practice have been raised by a number of High Court (Family Division) judges, and other senior family judges, and continue consistently to be voiced. That concern is about both the practice of authorising placements under the inherent jurisdiction but also the lack of appropriate accommodation. Cases include A Local Authority v AT and FE [2017] EWHC 2458 (Fam) (Holman J); In the matter of X (A Child) (No 3) [2017] EWHC 2036 (Fam) (Munby P); Re O [2018] EWFC B60 (HHJ Lazarus); Re S (Child in Care: Unregistered Placement) [2020] EWHC 1012 (Cobb J); Z (A Child) (DOLS: Lack of Secure Placement) [2020] EWHC 1827 (Fam) (Judd J); Lancashire County Council v G (Continuing Unavailability of Regulated Placement)(No.4) [2020] EWHC 2828; and most recently by MacDonald J in Tameside MBC v L [2021] EWHC 1814 (Fam).

On 30 July 2021, the Supreme Court dismissed T (A Child)’s appeal (In the matter of T (A Child) (Appellant) [2021] UKSC 35). As a result, the High Court continues to be able to grant an order under its inherent jurisdiction authorising the deprivation of a child’s liberty if it is satisfied that the circumstances of the placement constitute a deprivation of liberty for the purposes of Art 5 of the ECHR and it considers such an order to be in the child’s best interests.

On 9 September 2021, the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 came into force, prohibiting the placement of children under 16 in unregulated settings. On 8 September 2021, Mr Justice MacDonald in MBC v AM & Ors (DOL Orders for Children Under 16) [2021] EWHC 2472 (Fam) held 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 even where the placement would be prohibited by the 2021 Regulations. The issue remains one of resource. Local authorities, MacDonald J said, are not choosing to place children in unregulated placements but having to do so as there are no other placements available. It remains unclear to him, he said, ‘what precisely is being done to ensure the necessary provision’ of regulated placements.

He concluded that it had ‘long been recognised that there are practical limits to what the law can achieve in circumstances where the tools at its disposal are relatively blunt and the problems the law seeks to address are usually complex… A law may end up exacerbating the problem it was intending to solve… because the introduction of the law is not accompanied by the resources required to give it proper effect. The inherent jurisdiction with respect to children is the safety net that, amongst other things, acts to ensure that laws promulgated by Parliament, however commendable their aims, do not inadvertently operate so as to do harm to children.

In stating this, MacDonald J appears to send a message to the Secretary of State that creating regulation aimed at preventing children under 16 being placed into unregulated placements (with the implication being that such placement is not in their welfare interests) is but a resounding gong or clanging cymbal without resources being made available to support the aim of the regulation. Whether this will have the desired effect for the vulnerable children most impacted by these decisions remains to be seen.