The latest update on: Placement of looked-after children in unregulated accommodation

From 9 September 2021, new regulations have limited the types of accommodation in which a looked after child under 16 can lawfully be placed by children’s services.  On 8 September 2021, Mr Justice MacDonald, in MBC v AM & others (DOL Orders for Children under 16) [2021] EWHC 2472 (Fam) came to the conclusion that the High Court could declare that a deprivation of liberty in an unregulated placement was capable of being lawful if there was no alternative.  An analysis of that decision can be found here and it was suggested that the matter was likely to be considered in the Court of Appeal in the near future.

That has indeed proved correct.  By a decision dated 6 October 2021 Mr Justice MacDonald has granted permission to appeal in respect of one of the cases that was heard as part of the MBC case.  He concluded that there was a compelling reason to grant leave to appeal because, amongst other reasons, grave and important issues arise as to whether the Court retains jurisdiction to authorise the deprivation of liberty of a child in the context of an unlawful placement.   The Judge considered that that question should be examined by the Court of Appeal.

In addition, it should be noted that the Family Court is shortly due to hear a further cohort of cases in which the Court will consider the separate but related issue of whether, given the centrality of the President’s Guidance as described in Re T, it remains open to the court to exercise the inherent jurisdiction it has identified as subsisting in its judgment of 8 September 2021 in cases where the unregulated placement is either unable or unwilling to seek registration.  This separate question demonstrates why, notwithstanding the Court’s best efforts to establish a system of safeguards, further policy intervention is urgently needed.

Samantha Broadfoot QC is an expert in public law and practices across a broad range of chambers public law work.

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