Deprivation of Liberty Orders and the impact of the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 - Tameside MBC v AM and others [2021] EWHC 2472

On 9 September 2021 the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 came into force, amending the Care Planning, Placement and Case Review (England) Regulations 2010 so as to prohibit the placement of a looked after child under the age of 16 in unregulated accommodation.

The intention of these regulations was to 'ensure that looked after children under 16 are placed in children's homes or foster care instead of unregulated settings', settings which included the semi-independent/independent placements considered more appropriate for older children.

What impact does the change of regulations have on Deprivation of Liberty Orders?

The change in the Care Planning Placement Regulations raised a questions as to whether it remains lawful for the Court to authorise deprivation of liberty for children under 16 in unregulated placements due to these changes in regulations prohibiting local authorities from using such placements.

In the event that it is lawful for the Court to authorise deprivation of liberty for children under 16 in unregulated placements is the Court’s power to authorise deprivation of liberty limited to circumstances where there is no alternative regulated placement available or is it exercisable in all circumstances where authorisation of deprivation of liberty in the unlawful placement is considered necessary to protect the child's welfare?

These issues were considered by MacDonald J in the case of Tameside MBC v AM and others [2021] EWHC 2472 (Fam)

In four separate cases the local authority sought permission to apply for an order under the Inherent Jurisdiction of the High Court authorising the deprivation of liberty of a child under 16 where the proposed placement was in unregulated accommodation, (the background to each of is summarised at paragraphs 8-25]). All of the children were currently placed in 'unregulated placements' and subject to restrictions upon their liberty. An unregulated placement s one that is not required to register with Ofsted because they are not categorised as children's homes (including independent and semi-independent settings for older children); unregistered placements are those (including children's homes) which are required to register but have not done so.

An issue for the court was which category of accommodation these placements fell into. Considering the factors it was determined that the placements were: 'other arrangements which comply with any regulations made for the purposes of this section' under Children Act 1989 s. 22C(6)(d) (distinct from children's homes provided for by s. 22C(6)(c)). The 'regulations' to be complied with were the Care Planning, Placement and Case Reviews (England) Regulations 2010, amended with effect from 9 September 2021 to prohibit placements under s. 22C(6)(d) for children under 16 which did not fall within a narrow list in the new r. 27A.

When the amendment to the Care Planning, Placement and Case Review (England) Regulations 2010 came into effect, local authorities were granted a 6-month grace period to move children from unregulated placements into registered children's homes or foster care. The absence of resources to achieve this had been the subject of recent judicial comment [para 45] to which MacDonald J adds, observing that local authorities do not resort to (now prohibited) unregulated placements out of choice, but necessity [para 92-98].

Issue one — is the authorisation of deprivation of liberty of children in prohibited placements lawful?

The local authorities, children's guardians, Secretary of State for Education and Ofsted all submitted that the answer to this question was 'yes'. The court agreed, because:

  1. The inherent jurisdiction, as emphasised recently inRe T[2021] UKSC 35, existed to enable the court to protect children from harm. The Supreme Court had reiterated that, particularly in this context, such a power would be restricted only where Parliament had clearly intended it. No such legislative intent was apparent from the amendments to the regulations in question; the regulations prescribed the powers of local authorities to use certain placements, not the powers of the court to authorise deprivations of liberty within them, where there was no alternative and where the child would come to grave harm otherwise [paras 69-73]

    2. The court was not authorising a placement which the regulations now rendered unlawful, nor was it the court that deprived the child of his/her liberty therein. The court merely authorised the local authority to deprive a child of their liberty should it consider this necessary. The issue of the lawfulness of the placement remained one solely for the local authority [paras 74-75]

    3. The fact that a local authority may be using an unlawful placement did not relieve the court of its 'positive operational duty' under the ECHR to authorise a deprivation of liberty where required to avoid a real and immediate risk to life (Art. 2) or to ensure the child was not subjected to torture or inhuman or degrading treatment (Art. 3) [paras 76-77].

Issue two — what are the conditions for the Court exercise its power?

The (contested) secondary issue was whether the power to authorise deprivations of liberty in unregulated placements was — in light of Re T [2021] UKSC 35 and the Supreme Court's emphasis of the need for 'conditions of imperative necessity' for authorisation of deprivations of liberty where s.25 secure accommodation was unavailable — limited to situations where there is no alternative lawful placement available capable of meeting the child's needs (as submitted by Ofsted and the Secretary of State), or whether it was available more broadly whenever an unregulated placement is necessary to protect the child's welfare (as submitted by the local authorities) [para28];[paras 78-82].

MacDonald J accepted that the court must adopt a rigorous approach when making decisions which gave rise to the potential for placements which Parliament had decided were unlawful and observed that ordinarily the unavailability of a regulated placement would constitute the conditions of imperative necessity in these cases [paras 84-85]. However, it was possible to envisage circumstances where other conditions prevailed: for example, the court might authorise deprivation of liberty within an unregulated placement which was shortly to be regularised, despite a regulated alternative being available, where a temporary move to that placement would cause significant psychological harm. Each case will turn on its own facts, engaging an overarching best interests analysis, and it was neither desirable nor appropriate to attempt a definitive list of what may constitute an imperative consideration of necessity [para 86].

Mr Justice MacDonald emphasised that rigorous procedural safeguards were necessary in cases of unregulated placements, as set out in the President's Practice Guidance of November 2019 ('Placements in unregistered children's homes in England or unregistered care home services in Wales') which must be read and applied in full.

It is of note that the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 only applies in relation to children who are under 16 years of age.