T (A Child): Secure Accommodation, Inherent Jurisdiction and the Limits of Consent

Background

The appellant, anonymised as T, was a 15‑year‑old child subject to a care order. The local authority, CBC, sought to place T in secure accommodation. However, no places were available in registered secure children’s homes. CBC therefore applied to the High Court, under its inherent jurisdiction, for authorisation to place T in unregistered accommodation that would restrict her liberty.

T did not oppose the placement or the restrictions. She argued that she had already consented to the necessary limitations on her liberty and that further court orders were unnecessary. The High Court rejected this argument, finding her consent invalid, and granted CBC the orders sought. T appealed, seeking recognition that she was capable of consenting in law.

By the time of the Supreme Court hearing in July 2021, T had turned 18 and was living independently. The case therefore carried significance not for T personally, but for the wider legality of using inherent jurisdiction to authorise secure placements outside the statutory scheme.

The Supreme Court identified three issues:

• Whether the inherent jurisdiction can lawfully authorise placement in unregistered secure accommodation when no approved places exist.
• What legal test governs the exercise of that jurisdiction.
• Whether a child’s consent is relevant to the decision to exercise the jurisdiction.

Proceedings

1. Section 100(2)(d) Children Act 1989

T argued that the High Court had breached s.100(2)(d), which prevents the Court from granting a local authority parental responsibility it does not already possess. She claimed CBC lacked the power to detain her and had improperly obtained it through the Court.

The Secretary of State for Education clarified that CBC already held parental responsibility under the care order. The High Court did not confer new powers; it lawfully authorised the exercise of existing parental responsibility.

2. Conflict with the statutory scheme

T argued that the High Court’s decision undermined the statutory framework by authorising secure accommodation that had not been approved under the Children (Secure Accommodation) Regulations 1991 (Regulations). One placement was not even registered as a children’s home, meaning its operator was committing an offence.

The Court accepted that the Regulations prohibit using unapproved secure accommodation. However, Lord Lloyd‑Jones asked what should happen when a child faces significant harm, and no approved placement exists. The Secretary of State responded that s.100 provides the necessary safety net: the inherent jurisdiction can protect the child where no statutory alternative is available.

3. Article 5 ECHR

T relied on Art. 5(1)(d), which permits the detention of minors only for educational supervision and only in accordance with a procedure prescribed by law. She argued that unregulated accommodation could not guarantee educational supervision and that the process lacked statutory prescription.

Lady Black clarified that “educational supervision” is interpreted broadly, covering intellectual, emotional, social and behavioural development. She also confirmed that “prescribed by law” includes common law, meaning inherent jurisdiction satisfies the requirement. However, she emphasised that inadequate regulation could still breach Art. 5.

4. Consent

T argued that court orders were unnecessary because she had consented to the restrictions. Mostyn J had rejected her consent as lacking “authentic and enduring” quality.

Lady Black upheld this assessment. She noted that consent must be reliable, consistent and capable of sustaining restrictive conditions. Where consent is fragile or unstable, court orders remain necessary. She also observed that if a child genuinely consents and consistently complies, no deprivation of liberty may occur. However, protecting children cannot depend on consent that fluctuates.

Judgment

The Supreme Court unanimously dismissed the appeal.

The justices stressed that without inherent jurisdiction, the High Court would be powerless to protect children at risk of severe harm when statutory placements are unavailable. This jurisdiction therefore operates as an “ultimate safety net”. Lady Arden expressed concern at the systemic failures that make such reliance necessary, criticising the government’s neglect of childcare provision.

The Court also emphasised the need for robust safeguarding. Any use of unregistered accommodation must be scrutinised by the High Court, informed by Ofsted, Care Inspectorate Wales, and the President of the Family Division.

Commentary

The Supreme Court’s reasoning is compelling. The statutory scheme is clear, but it does not account for the chronic shortage of secure placements. Without inherent jurisdiction, children facing immediate and serious harm would be left without protection. The Court’s approach aligns with previous case law and reflects the practical realities of safeguarding.

Lady Arden’s criticism is well‑placed. It is troubling that the state must rely on judicial creativity to compensate for structural failures in childcare provision. The judgment exposes a wider policy problem: the government’s persistent underinvestment in secure accommodation and children’s services.