Re EBY [2023] EWHC 2494 (Fam)
Essex
This case has been summarised on page 26 of 39 Essex Chambers, 'Mental Capacity Report' (issue 135B, November 2023).
ICLR
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.
Family Division
Local Authority v EBY and others
2023 Oct 3; 9
Paul Bowen KC sitting as a deputy High Court judge
Children— Inherent jurisdiction— Deprivation of liberty— 17-year-old child deemed to be at risk of significant harm— Child accommodated by local authority— Local authority applying under inherent jurisdiction for authorisation for deprivation of liberty— Whether authorisation permissible exercise of inherent jurisdiction— Whether authorisation prohibited by statutory scheme— Whether inherent jurisdiction to be exercised— Children Act 1989 (c 41), ss 20(3), 31(3), 100(2)(b)(d) — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 2, 5
The local authority applied under the inherent jurisdiction for a deprivation of liberty order in respect of 17-year-old girl accommodated in an unregistered children’s home under section 20(3) of the Children Act 1989 with the consent of her parents. The local authority contended that such an order was in the child’s best interests to protect her from further serious harm as a result of her involvement in criminal gang activity and was a necessary and proportionate measure for the purposes of article 5(1)(d) of the Convention for the Protection of Human Rights and Fundamental Freedoms, since no other legal means were available to protect her and she would otherwise be at such a risk of harm as to breach the state's protective duties under article 2. The application, supported by the parents but opposed by the child and the children’s guardian, raised the issues whether, in circumstances where the subject was a competent, non-consenting 17-year-old not in care but accommodated under section 20, the inherent jurisdiction was expressly excluded by section 100(2)(b) of the 1989 Act, in so far as it excluded the use of the inherent jurisdiction so as to require a child to be accommodated by or on behalf of a local authority, or section 100(2)(d), which precluded its use for the purpose of conferring on any local authority power to determine any question in connection with parental responsibility for a child, or was impliedly excluded by section 31(3) which prohibited the making of a care or supervision order for a child of 17.
On the application—
Held, application granted. (1) Section 100 of the Children Act 1989 imposed a strict statutory prohibition on the court exercising the inherent jurisdiction in the circumstances outlined in section 100(2), together with a requirement for leave under section 100(3) which might only be granted if the court was satisfied of the conditions set out in section 100(4). However, the inherent jurisdiction was not excluded by section 100(2)(b) of the 1989 Act, in so far as it excluded the use of the inherent jurisdiction so as to require a child to be accommodated by or on behalf of a local authority, in the circumstances of the present case since a deprivation of liberty order made in respect of a 17-year-old who was not in care, but was accommodated under section 20(3) of the Act with the permission of her parents, would not operate where the local authority already had a duty to accommodate the child. Nor was the inherent jurisdiction expressly excluded by section 100(2)(d) because parental responsibility could not authorise a deprivation of liberty for a child over 16 and thus the deprivation of liberty order would not confer any power to deprive the child of her liberty as an aspect of parental responsibility that the local authority otherwise did not have (paras 36, 44, 45).
Birmingham City Council v D [2019] 1 WLR 5403B, SC(E) and In re Z (A Child) (DOL: Transition Plan) [2021] 2 FLR 94Not on Bailii! considered.
A City Council v LS [2019] EWHC 1384 (Fam)M; [2020] Fam 28B and Derby City Council v BA (No 1) [2022] Fam 351B, CA distinguished.
(2) While section 31(3) of the 1989 Act prohibited the making of a care or supervision order for a child of 17, it did not necessarily follow from that express exclusion that the inherent jurisdiction to deprive such a child of their liberty was impliedly excluded, since (i) section 31(3) did not exclude the making of orders authorising the deprivation of liberty of 17-year-olds in all circumstances, (ii) had Parliament intended to exclude the deprivation of liberty of such children in all cases it would have said so in terms similar to those in section 31(3) or section 100(2), and (iii) to exclude the inherent jurisdiction in some circumstances might leave the court unable to authorise measures that were necessary to protect a vulnerable but otherwise competent 17-year-old from serious, life-threatening harm, in breach of the state's positive protective duties under articles 2 and 3 of the Human Rights Convention. Since the court was bound by section 3 of the Human Rights Act 1998 to give a Convention-compliant construction to a statutory provision so far as it was possible to do so, it precluded an interpretation of section 31(3) that excluded the operation of the inherent jurisdiction in a case such as the present (paras 46–48).
Dicta of Lord Nicholls of Birkenhead in In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291B, paras 39–40, HL(E) applied.
(3) Having considered whether leave to invoke the inherent jurisdiction ought to be granted under section 100(3)–(5) of the 1989 Act and being satisfied that (i) the result sought by the local authority could not be met by some other order and that if the jurisdiction was not exercised the child was likely to suffer significant harm, (ii) having conducted a welfare assessment, a deprivation of liberty order was in the child’s best interests, (iii) the deprivation of liberty complied with article 5 of the Human Rights Convention, was a necessary and proportionate means of meeting the child’s welfare needs and was attended by adequate safeguards, (iv) there was an imperative necessity for the proposed placement, and (v) the child was at a real and immediate risk of death or life-threatening injury or of treatment crossing the article 3 threshold and triggering a positive duty to make a deprivation of liberty order under articles 2 or 3, the application would be granted and the order made (paras 5, 56–62).
Dicta of Lady Black in In re T (A Child) [2022] AC 723B, paras 141, 170, 174-177, SC(E) applied.
Colin Morgan (instructed by A Local Authority) for the local authority.
James Turner (instructed by Jackson West Solicitors) for the child.
Simon Miller (instructed by HLA Family Law) acting pro bono for the father.
The mother in person.
The children’s guardian in person.
Jeanette Burn, Barrister
Referenced Legislation
Children Act 1989 (c 41), ss 20(3), 31(3), 100(2)(b)(d)
Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 2, 5
Full judgment: BAILII
Subject(s):
- Deprivation of liberty - children🔍 See also: Category:Deprivation of liberty
- Inherent jurisdiction cases🔍 Older inherent jurisdiction cases can still be found in Category:Other capacity cases
Date: 9/10/23🔍
Court: High Court (Family Division)🔍
Judge(s):
- Paul Bowen🔍
Parties:
Citation number(s):
What links here:- A City Council v LS [2019] EWHC 1384 (Fam)
- 39 Essex Chambers, 'Mental Capacity Report' (issue 135B, November 2023)
Published: 11/10/23 13:39
Cached: 2024-12-22 04:43:05