A Local Authority v EBY (A Child) and Others

Held, granting the application, (1) that the making of a deprivation of liberty order under the High Court’s inherent jurisdiction in respect of a 17-year-old who was not in care but was accommodated by a local authority under section 20(3) of the Children Act 1989 would not operate so as to “require” the child to be accommodated by or on behalf of the local authority within section 100(2)(b) of the 1989 Act, and so was not excluded by that provision, since the local authority would already be under a duty to accommodate the child under section 20(3) while the child’s parents did not object; that, furthermore, the making of a deprivation of liberty order under the High Court’s inherent jurisdiction in the same circumstances would not have the effect of conferring on the local authority power to determine any question which had arisen, or which might arise, “in connection with” any aspect of parental responsibility for the child within section 100(2)(d) of the 1989 Act, and so was not excluded by that provision, since a deprivation of liberty for a child over 16 was not permitted by, and therefore was not “in connection with”, any aspect of parental responsibility; and that, accordingly, the exercise of the High Court’s inherent jurisdiction in the present case was not excluded by section 100(2)(b) or (d) (post, paras 44–45).

Birmingham City Council v D [2019] 1 WLR 5403, SC(E) and In re Z (A Child: Deprivation of Liberty) [2021] 2 FLR 94 considered.

A City Council v LS [2020] Fam 28 distinguished.

(2) That the prohibition in section 31(3) of the 1989 Act on making a care order or supervision order with respect to a 17-year-old did not impliedly exclude the exercise of the High Court’s inherent jurisdiction to make a deprivation of liberty order in respect of a competent, objecting 17-year-old; that, in particular, (i) the 1989 Act did not exclude the making of orders authorising the deprivation of liberty of 17-year-olds in all circumstances, since section 25 of that Act empowered the court to make a secure accommodation order in certain circumstances, (ii) a care order did not authorise a deprivation of liberty, (iii) if Parliament had intended to exclude the deprivation of liberty of such children in all cases it would have said so expressly and (iv) to exclude the inherent jurisdiction in those circumstances might leave the High Court unable to authorise measures that were necessary to protect a vulnerable but 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 Convention for the Protection of Human Rights and Fundamental Freedoms; and that, accordingly, the High Court had power under its inherent jurisdiction to make the order sought in the present case (post, paras 46–48).

(3) That, on the facts of the present case, leave to apply for the exercise of the inherent jurisdiction would be granted under section 100(3) of the 1989 Act since, for the purposes of section 100(4) and (5), the result that the local authority wished to achieve could not be achieved by the making of any order that it might otherwise apply for (such as a secure accommodation order under section 25) and there was reasonable cause to believe that if the court’s inherent jurisdiction were not exercised the child was likely to suffer significant harm; that the order sought was in the child’s best interests, in particular that she be protected from serious life-threatening harm, notwithstanding the child’s refusal to consent to the order; that, further, the order sought complied with article 5 of the Convention in that it was “for the purpose of educational supervision” within article 5(1)(d) and was a necessary and proportionate means of meeting the child’s welfare needs and was attended by adequate safeguards; that, moreover, although the proposed placement was in an unregistered children’s home, which might constitute a criminal offence under section 11 of the Care Standards Act 2000, there was an imperative necessity for such a placement given the risks to the child; that, finally, the child was at a real and immediate risk of death or life-threatening injury and of inhuman or degrading treatment so as to impose on the state a positive operational duty to take steps to protect her under articles 2 and 3 of the Convention, notwithstanding that the child might have exposed herself to such risk and objected to the making of the order; and that, accordingly, it was necessary and proportionate to make the order sought (post, paras 56–62).

In re T (A Child) [2022] AC 723, SC(E) applied.