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Re SB [2024] EWHC 2964 (Fam)

Inherent jurisdiction and MHA SB, a 15-year-old, was subject to an interim care order, and a deprivation of liberty order made under the High Court's inherent jurisdiction. The local authority argued that the court should declare that SB was within the scope of the MHA and that therefore the inherent jurisdiction could not be used. Its submissions were based on parity of argument with the Case E ineligibility provisions in the MCA, the interpretation given to them in GJ, and the approach taken by the court in JS. The High Court decided that the approach taken in JS did not apply to the inherent jurisdiction: to make a declaration about MHA detention would be to exercise an impermissible supervisory review function; if such a declaration were made as a means of influencing the professionals' decisions then it would be an abuse of process; in any event, the outcome might leave SB without protection from either regime.

Essex

Essex newsletter 146.pdf

This case has been summarised on page 29 of 39 Essex Chambers, 'Mental Capacity Report' (issue 146, December 2024).

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.  

The WLR Daily case summaries

[2025] WLR(D) 49B

Family Division

Conwy County Borough Council v PR and others

[2024] EWHC 2964 (Fam)B

2024 Oct 29, 30; Nov 19

Keehan J

Children— Inherent jurisdiction— Deprivation of liberty— Young person exhibiting challenging behaviour but not admitted to hospital for treatment under mental health statutory scheme— Local authority obtaining interim care order and young person deprived of liberty in hospital placement under inherent jurisdiction— Local authority seeking declaration that inherent jurisdiction not available in circumstances where young person “within scope of” statutory scheme— Whether application involving impermissible review of statutory scheme decision-makers— Whether jurisdiction to make deprivation of liberty order— Mental Health Act 1983 (c 20), s 3

A young person with autism, and potentially a delusional disorder, had exhibited antisocial and challenging behaviour that placed her and others at risk of very serious harm, resulting in repeated referrals to the local authority, local psychiatric services and the police. However, on no less than six occasions a health care professional had concluded that the young person did not meet the statutory criteria for detention in a hospital for treatment pursuant to section 3 of the Mental Health Act 1983. Her continued extreme behaviour resulted, nevertheless, in the local authority obtaining an interim care order and placing her in a general adolescent unit (operated by the local health board) where she was detained pursuant to an order under the inherent jurisdiction of the High Court authorising the deprivation of her liberty in a place of safety. The issue arose between the local authority and the heath board as to which statutory body was responsible for the care and treatment of the young person and under what legal framework. Accordingly, the local authority sought a determination of whether the inherent jurisdiction was available, and could be appropriately deployed, to authorise the ongoing detention of the young person in a mental health hospital or whether, as the authority contended, the young person “fell within the scope of” section 3 of the 1983 Act with the effect that the use of the inherent jurisdiction impermissibly “cut across” the statutory scheme.

On the local authority’s application—

Held, application refused. The authorities were abundantly clear that the court had no role to supervise or review decisions which had been entrusted by Parliament to another public authority, the Mental Health Act 1983 being an obvious example where Parliament had provided for a statutory code in respect of the detention of people with a mental disorder for treatment in hospital. For the court to make findings and/or declarations about whether the young person was detainable under section 3 of the 1983 Act when contemplating the exercise of the inherent jurisdiction would be to exercise an impermissible supervisory or review function of the clinicians and mental health professionals acting pursuant to the provisions of the 1983 Act, and there was simply no jurisdiction to make such findings or orders. Moreover, even if the court were to make a finding that the young person was detainable under section 3 of the 1983 Act that would not, of itself, lead to the young person being detained in a hospital for treatment under the 1983 Act and, if an order were made that led the clinicians and professionals charged with making the decision to change their professional opinions, the making of that order would amount to an abuse of process. In the present case, the court would continue to authorise the young person’s continued deprivation of liberty at her current placement pursuant to its inherent jurisdiction (paras 59, 61–63, 67, 68).

R v Secretary of State for the Home Department, Ex p T [1995] 1 FLR 293Not on Bailii!, CA and In re MK [2024] EWHC 1553 (Fam)B applied. Per curiam. In so far as Schedule 1A to the Mental Capacity Act 2005 makes express statutory provision for finding that a person is ineligible for deprivation of their liberty under the 2005 Act in a case where they could be detained under the provisions of the Mental Health Act 1983, it enables the Court of Protection to consider and determine the question of whether a person could be detained under section 2 or 3 of the 1983 Act. However, it is limited to determining the specific question of whether a person is ineligible to be detained under the provisions of the 2005 Act and there is no basis for concluding that this provision is to be read as having a wider application so as, in particular, to permit the court to determine whether a person is “within the scope of the Mental Health Act” when exercising its powers under the inherent jurisdiction (para 60).

Manchester University Hospitals NHS Foundation Trust v JS (2023) 197 BMLR 74, Ct of Protection distinguished. Joseph O’Brien KC (instructed by Legal Team, Conwy County Borough Council) for the local authority.

Dominic Boothroyd (instructed by HD Law Ltd) for the father.

Nicholas Sefton (instructed by Gamlins Solicitors LLP) for the mother.

Neil Owen-Casey (instructed by Gamlins Law Ltd) for the young person, by the children’s guardian.

Emma Sutton KC (instructed by NHS Wales SSP Legal & Risk Services) for the health board.

Thomas Barnes, Solicitor

Referenced Legislation

Mental Health Act 1983 (c 20), s 3

CASES DATABASE

Full judgment: BAILII

Subject(s):

Date: 19/11/24🔍

Court: High Court (Family Division)🔍

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Judge(s):

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Published: 21/11/24 14:59

Cached: 2025-04-11 16:17:53

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