September 13th, 2021 by James Goudie KC

Following the decision of the Supreme Court in Re T (2021) UKSC 35, the High Court in Tameside MBC v AM (2021) EWHC 2472 ( Fam) holds that, notwithstanding the subsequent amendment of the Care Placement etc Regulations , it is open to the Court under its inherent jurisdiction to authorise the deprivation of liberty of a child in a placement that the amended Regulations prohibited. The Judge addresses the protective inherent jurisdiction generally and the importance of anticipating and preventing harm from para 47. The inherent jurisdiction may be used notwithstanding the existence of a statutory
scheme in order to fill a gap or to avoid injustice. However, there are limitations on the exercise of the jurisdiction, including the constitutional duty to apply ouster and other legislation. From para 58 the Judge addresses the inherent jurisdiction and Deprivation of Liberty. At para 68 and following he concluded that his decision did not cut across the amended statutory scheme. The amended statutory scheme proscribed the powers of the local authority. It did not impose a mandatory prohibition upon the Court authorising a child under 16 being deprived of liberty in an unregulated placement. This conclusion was reinforced by the ECHR. At para 90 the Judge sets out the relevant principles for the Court to apply. Within the context of the continuing inadequacy of resources, the High Court may act if an unregulated placement is demonstrated to be in the child’s best interests.

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