“[3] Where application is made to the High Court under its inherent jurisdiction to authorise the deprivation of liberty of a child, it is highly likely the place at which the child is to be accommodated will meet the definition of a children’s home or, in Wales, a care home service.”
“[1] This Practice Guidance is being issued to explain the registration and regulation structure applicable in England and, separately, in Wales for residential care facilities for children and young people. The number of applications made for a court in family proceedings to authorise a residential placement of a young person in circumstances where their liberty may be restricted has increased markedly in recent times. Often the court is invited to exercise its inherent jurisdiction to approve a particular placement at an ‘urgent’ hearing. Where a residential unit is registered as a ‘children’s home’ in England, or a ‘care home service’ in Wales, the placement will be regulated and inspected by Ofsted (England) or the Care Inspectorate Wales. The primary focus of this Guidance is to ensure that, where a court authorises placement in an unregistered unit, steps are immediately taken by those operating the unit to apply for registration (if the unit requires registration) so that the placement will become regulated within the statutory scheme as soon as possible. The Guidance requires the court to monitor the progress of the application for registration and, if registration is not achieved, to review its continued approval of the child’s placement in an unregistered unit.”
“[46] Practice Directions may also be a source of invaluable guidance. They do not have the force of statute, are not scrutinised or approved by Parliament and cannot change the law but they are used to describe good practice. By convention, they go through an elaborate process of scrutiny by Rules Committees although there is no power in those committees to prescribe their content. They are the responsibility of the delegated judicial office holder and the Minister concerned. The power to issue Practice Directions includes that of the Lord Chief Justice with the agreement of the Lord Chancellor to give designated directions under section 13 of and Schedule 2 to theConstitutional Reform Act 2005 (which is delegated by the Lord Chief Justice to the President as Head of Family Justice) and the power in the President undersection 81 of the Courts Act 2003 . Undersection 81(4) of the 2003 Act the agreement of the Lord Chancellor is not needed if the guidance concerns the interpretation of the law or the making of judicial decisions.”
“[47] For many years the family courts have also had the benefit of non-statutory practice guidance issued by the President of the Family Division or with the President’s agreement by bodies such as the Family Justice Council, the Children Act Advisory Committee and the President’s Inter-Disciplinary Committee. Typically, guidance of this kind reflects a transparent process of inter-disciplinary working supported by evidence based research, a report of a working party or council that is scrutinised by the body concerned and then the adoption of recommendations by the judiciary, professional bodies and practitioners and/or Government. Guidance of this kind can always be challenged in court.”
“[36] There is, in our view, a distinction between directions and guidance as to the way in which rules and practice directions will be interpreted. We accept that one object of the practice directions which supplement the CPR is to provide guidance to litigants but they also contain directions as to the procedure that should be followed. The nature of the guides is, or should be, different. They do not, or should not, contain directions; they do, or should, explain, inter alia, how practice directions apply and are interpreted. Guidance as to how a court interprets and applies practice directions and rules are not in our view themselves practice directions and have rightly not been treated as such.”
“It is important to note that the President's Guidance is guidance not law. Therefore a local authority and the court is under an obligation to take it into account and would err in law if it failed to do so, but the President cannot create law in that Guidance. It is also important to note that the Guidance and its addendum do not suggest that placing a child in an unregistered placement would make that placement unlawful or that it cannot be done.”
“[17] It is important to note that the focus of the present appeal is upon a relatively narrow group of cases. The Court of Appeal said (para 84 of the judgment of Sir Andrew McFarlane P, with whom the other two members of the court agreed) that the case did “not concern the placement of children in other than the equivalent of secure accommodation”, and that “[d]ifferent considerations will apply when an application is directed towards, and only directed towards, a deprivation of liberty”
“…Accordingly, the courts, in the exercise of the inherent jurisdiction, must only authorise such a placement where there are “imperative considerations of necessity” and where there has been strict compliance with the matters contained in the Guidance issued by the President of the Family Division on12 November 2019 in relation to placing a child in an unregistered children’s home (“the Guidance”) (see para 147 above) and with the addendum dated1 December 2020 to the Guidance. Furthermore, if a placement is authorised in an unregistered children’s home then the court must monitor the progress of the application for registration in accordance with the Guidance and, if registration is not achieved, the court must rigorously review its continued approval of the child’s placement in an unregistered home.”
“I set out below the matters which must be considered in compliance with the Guidance and the addendum prior to a court authorising a placement in an unregistered children’s home. I do so to emphasise the importance of those matters, in addition to any other matters which are relevant on the particular facts of an individual case. The information made available to the court is to be seen in the context of the parties’ obligation to bring all matters of relevance to the welfare of children to the attention of the court to enable the court to decide the issues on an adversarial basis, or to direct further evidence or enquiries in accordance with its inquisitorial role.”
“[172] … It is unnecessary to envisage all the sorts of factual situations that might arise which would still call for an order authorising a placement where the children’s home remains unregistered except to say that the test of necessity should be applied all the more strictly and that there will be a heightened level of anxious enquiry and scrutiny. In any event, the Guidance primarily envisages that the children’s home will become registered so that a criminal offence is no longer being committed by others. The Guidance must be followed so that, in practice, within a short period of time the children’s home is registered. This process of registration should continue to be energetically and pro-actively monitored by the courts.”
“[193] It is always going to be a case of the court being satisfied that the unregistered home will meet the child’s needs and that there is no realistic alternative to the placement and imposing the strict conditions set out in the President’s Guidance, with which all concerned are familiar.”
“Right to liberty and security (1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law …/ (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; …/ (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
“[90] Article 5 imposes an obligation to conform to the substantive and procedural rules of national law. Accordingly, the detention must have a legal basis in domestic law, and the law must be of a quality which is compatible with the rule of law. This means that where the domestic law authorises deprivation of liberty, it must be sufficiently accessible, precise and foreseeable in its application to avoid the risk of arbitrariness. It must be attended by fair and proper procedures. An individual who is deprived of their liberty is entitled to have the lawfulness of that detention reviewed by a court. [91] There is nothing in article 5, or in the case law of the European Court of Human Rights, that requires that the domestic law and procedure should be set out in statute and/or regulations, rather than being common law based.”
“[153] There are appropriate procedural safeguards built into the application process, broadly mirroring those applicable to a section 25 application. There is provision for the child to be made a party to the process, for example, and for the appointment of a guardian, as well as for reviews of the continuing confinement. By requiring that the structure imposed by section 25 should also be observed in an application to place a child in the equivalent of secure accommodation, the President has ensured that proper procedural protection is built in for the child. The matter is also dealt with in considerable detail by Wall J in In re C (Detention: Medical Treatment) and Sir James Munby P in In re A (Children) (Care Proceedings: Deprivation of Liberty)[2018] EWHC 138 (Fam) ;[2019] Fam 45 . In addition, the President’s Practice Guidance (see above) makes a contribution to the procedural protection for the child.”
“In considering this argument, the restrictions placed by section 100 upon the use of the inherent jurisdiction should be put carefully into context. This court should not, in my view, be led into an interpretation of them which focuses so intently on the detail of the legal theory underpinning the words that the intended sense of the provision as a whole is lost, with consequent damage to the ability of the High Court to react when the assistance of the inherent jurisdiction is truly required. I recorded earlier the time-honoured role that the inherent jurisdiction plays in protecting children whose welfare requires it (see paras 64 and following).”
“Cases such as those to which I have alluded earlier in this judgment demonstrate, it seems to me, that it is unthinkable that the High Court, with its long-established role in protecting children, should have no means to keep these unfortunate children (and others who may be at risk from them) safe from extreme harm, in some cases death. If the local authority cannot apply for an order under section 25 because there is no section 25 compliant secure accommodation available, I would accept that the inherent jurisdiction can, and will have to be, used to fill that gap, without clashing impermissibly with the statutory scheme.”
“The inherent jurisdiction plays an essential role in meeting the need as a matter of public policy for children to be properly safeguarded. As this case demonstrates, it provides an important means of securing children’s interests when other solutions are not available.”
“[37] There is a circularity which is, for the guardian as she contemplates the position for QV in this case and similarly placed young people in others, problematic. It is a circle which is impossible to square: the Guardian all things being equal would make the submission that the solution at which the Court should arrive if it concludes that the relevant body ‘won’t’ apply to register or is failing to comply or is dragging its corporate feet in relation to the President’s Guidance or is quite simply making use of the jurisdiction because it remains available to it and is the path of least resistance would be for the Court to say in effect ‘thus far and no further’ and to bring it to an end. That would be in all likelihood, a way in which the difficulties (which to return to the beginning are difficulties of resource above all else) move from the arena of the court where they should not be and into the province of others. Such an approach however comes at a cost; and the cost is paid by the cohort of vulnerable children and young people for whom there is then nothing in the way of a protective jurisdiction at all. So it is that the Guardian steps away from the otherwise obvious submission that the Court should stand firm; should pursue the reasoning at [62] in Wigan BC v Y to its logical conclusion; should refuse to sanction the jurisdiction. The welfare of this or another subject child is nowhere in that approach never mind paramount or primary.”
“[11] Registration under both the CSA and RISCA ensures registered persons and service providers are fit to carry on, or manage, the provision, both in terms of their suitability to work with children and the ability to provide care to the required legal standards. In addition, and very importantly, it ensures provision is inspected by Ofsted or Care Inspectorate Wales (“CIW”) and action can be taken to respond to shortfalls in the provision of services to children accommodated in the children’s home or, in the case of Wales, the care home service.”
“[143] It has to be recognised that when the local authority applies under the inherent jurisdiction for the court to authorise a secure placement which is either not in a registered children’s home or is in a children’s home that has not been approved for secure accommodation, those placements will not satisfy all the requirements of the regulatory framework. If the placement is in an unregistered children’s home, a criminal offence will be committed by any person who carries on or manages the home. The important safeguards that come with registration will be absent. If the placement is in an unregulated setting, it will equally escape these safeguards, and it is noted that the Children’s Commissioner expresses particular concern about children being deprived of their liberty in unregulated placements, to the point of questioning whether such placements, for example in caravans and outward bound centres, could ever be classed as sufficiently appropriate for article 5 purposes.”
“[144] The courts have put in place such safeguards as they can to overcome the shortcomings of the present arrangements, and I will come to these in due course. But whatever the courts devise cannot replicate the official safety net that the regulatory framework provides when it is applicable. To take an obvious example, the court is not able to carry out the sort of inspections and checks that Ofsted and the Care Inspectorate Wales are obliged to carry out.”
“[12] Ofsted and CIW each has powers under the CSA and RISCA respectively to enter and inspect any premises which are used, or which they have reasonable cause to believe are being used as a children’s home, or care home service. Where Ofsted or CIW find that an unregistered children’s home or care home service is being carried on and managed without the necessary registration, they have the power to prosecute.”
“[1] … The primary focus of this Guidance is to ensure that, where a court authorises placement in an unregistered unit, steps are immediately taken by those operating the unit to apply for registration (if the unit requires registration) so that the placement will become regulated within the statutory scheme as soon as possible. The Guidance requires the court to monitor the progress of the application for registration and, if registration is not achieved, to review its continued approval of the child’s placement in an unregistered unit.”
“As was the case for the lodge at [location given], it will not be possible to access the specific lodge until check in. However the site will be contacted by telephone to complete a Property Risk Assessment on Monday17th October 2021 once the specific lodge has been allocated to the booking. This will be updated if required when QV moves on Friday22nd October 2021 . The property is a holiday rental property for short term rentals, so the property does not have safeguards you would expect in a formal children’s home residential setting however [the holiday company] have confirmed that all properties have relevant holiday accommodation safety standards.”