A High Court judge recently rejected the use of the court’s inherent jurisdiction to protect 17-year-old gang member. The Court of Protection team at 39 Essex Chambers explain why.
The issue in the case of A City Council v LS, RE and KS (A Child)  EWHC 1384 (Fam) (High Court (Family Division))(MacDonald J) was whether the High Court had power under its inherent jurisdiction to authorise the deprivation of liberty of a 17-year-old who was at grave risk of serious, possibly fatal, harm but whose parent objected to him being placed in local authority accommodation. The short answer was ‘no’.
KS was involved in serious gang activity. The local authority sought an order to delegate to the police the power to enter premises, detain and restrain KS, and transport him to a placement that would deprive liberty. Since the original order which authorised the same, he had absconded and had not been located by the time of the hearing, but had liaised with his lawyer and wanted to return to his mother.
The local authority accepted that the relief sought lay “at the edge of the court’s inherent jurisdiction” as KS was not, and could not be, a looked after child for the purposes of the Children Act 1989. There was a strict statutory prohibition in s100(2) which prevented the inherent jurisdiction being used to require someone under 18 being placed in the care, supervision, or accommodation of a local authority.
Noting that the inherent jurisdiction’s origins date back to the feudal period, MacDonald J observed that “[t]he boundaries of the inherent jurisdiction, whilst malleable and moveable in response to changing societal values, are not unconstrained” (para35). There were reasons to doubt the correctness of the decision in Re B (Secure Accommodation: Inherent Jurisdiction) (No 1)  EWHC 4654 (Fam), authorising under the inherent jurisdiction the detention in secure accommodation of a child who was not the subject of a care order and who was not accommodated by the local authority (para 42). KS’s mother retained “exclusive parental responsibility for him” (para 46) and did not consent to the accommodation. This was not a case where the court was being invited to authorise a non-secure placement for a looked after child due to a lack of suitable beds preventing a secure accommodation application under s25. Rather, this was a case where the local authority sought an order because s25 cannot apply to KS. And this was prohibited by s100(2)(b). As Hayden J had observed in London Borough of Redbridge v SA  3 WLR 1617 at :
The High Court's inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.
Accordingly, the High Court dismissed the application.
We note this case to illustrate that the inherent jurisdiction cannot be invoked by public bodies simply to plug supposed statutory lacunae, even where there are risks to life. Sometimes lacunae are there for good reason. For under 18s, the Children Act s100(2)(b) specifically prohibits the exercise of the inherent jurisdiction in these circumstances. Whether the same is true of adults who fall outside the scope of the Mental Capacity Act 2005 very much remains to be seen. For the 2005 Act contains no similar statutory prohibition. But the ability of the High Court to authorise the detention of those with mental disorder who have decisional capacity is particularly controversial. The decision in Meyers very much avoids the issue as the court considered that his choices were constrained, rather than his liberty deprived. But future testing of the boundaries seems likely. The Mental Health Act 1983 permits detention of those with capacity. And whether such controversial terrain ought to be a matter for Parliament, rather than the High Court, will no doubt be a bone of contention for some time to come.
This article was written by the Court of Protection team at 39 Essex Chambers.