The applicant, a registered charity which promoted and protected the rights of children in England who were in or entitled to the care of the state, sought to trigger the court’s inherent jurisdiction to make wardship orders in relation to a number of unaccompanied asylum-seeking children who had gone missing from Home Office-run hotel accommodation. In all the cases the children went missing a few days after they were placed in the hotel and before they were referred to a local authority under the National Transfer Scheme. The charity did not seek specific orders, such as location orders, in respect of the children but wished for the court to ensure that it had the relevant information about the children and to consider whether it should make further orders in respect of them under its wardship jurisdiction.
On the application—
Held, application dismissed. Section 100 of the Children Act 1989 set out the restrictions on the use of the inherent jurisdiction, in particular that it could not be used to require that a child be placed in local authority care or accommodated by or on behalf of a local authority. Although the inherent jurisdiction was a very broad one which could be used flexibly to protect children in very different circumstances the fundamental constitutional principle was that where there was a statutory scheme the court should only use the inherent jurisdiction if there was a lacuna. However, the 1989 Act set out a comprehensive scheme for the protection of children in need in a local authority area. The difficulty arose here because the children had gone missing, not because there was a lacuna in the statutory scheme. Even if there were issues around how actively efforts were being made to find the children, that would not give a proper basis for the court to exercise the inherent jurisdiction since, if the relevant agencies were not exercising their statutory powers correctly, the remedy would be judicial review. There was no lacuna in the statutory scheme which would justify the exercise of the inherent jurisdiction and therefore it was not an appropriate case in which the court could or ought to exercise its wardship jurisdiction (paras 31, 33–35, 37, 38).
Amanda Weston KC, Naomi Wiseman and Rob George (instructed by Good Law Practice) for the applicant.
Fiona Paterson KC and Lisa Giovannetti KC (instructed by Treasury Solicitor) for the Secretary of State.
Joanne Clement KC (instructed by Treasury Solicitor) for the interested party, the Secretary of State for Education.
Maria Stanley attended on behalf of Cafcass as advocate to the court.