l - [2025] EWHC 2230 (Fam)

Discussion and conclusion

The key concern of the local authority is that under the licensing conditions Jake is free of any restraint between 7am and 9pm. Under the DOLs order, he is subject to one-to-one supervision during that period. At paragraph 9 of their position statement, the local authority say that “should Jake not engage with [the safety plan], there would be no legal mechanism or authority in which to prevent Jake from absconding or placing himself at risk.”

In my judgment, this is not correct. It is true that a DOLs order is merely permissive: it allows the local authority to do something which, in the absence of the permission given by the DOLs order, they could not do. If Jake breaches the terms of the DOLs order, he is — not even theoretically — liable to contempt of court or any other Court-imposed sanction for beach of the DOLs order. The only consequence of breach is that the local authority can use limited physical force to ensure Jake’s compliance. It is in order to avoid the need to use physical force to prevent absconding, that DOLs orders regularly include provisions for locking doors and affixing restrictors to windows.

The absence of sanction is, however, quite different in relation to a breach of the licence conditions. If Jake fails during the day-time period to be “of good behaviour [or behaves] in a way which undermines the purpose of the licence period” then the consequences are draconian: he can be brought back to [the detention centre] and incarcerated until 29^th October 2026. Likewise, if he absconds, the consequence is potentially imprisonment following the rescinding of his licence. This sanction is much more severe than putting restrictors on Jake’s bedroom windows and locking his doors.

Further, the local authority’s desire to ensure a step-down period is not at odds with what seems to be contemplated by the licence conditions. Condition (xi) provides for Jake to comply with any requirements for his addressing his sexual offending which the Youth Justice Service may impose. Conditions (xii) and (xiii) impose similar requirements in respect of education, housing and social networks.

No evidence has been adduced from [Jake’s YOT supervisor] as to the intentions of the Staffordshire Youth Justice Service’s YOT. I am therefore hampered in assessing the relative merits of the DOLs route advocated by the local authority as against what the YOT propose. The local authority has provided a well-reasoned plan for ensuring Jake’s development over the next six weeks. By contrast, all I have been able to do as regards the YOT’s proposals is to examine what would be permitted under the licence conditions. It need hardly be said, however, that the YOT will no doubt do what they consider is best for ensuring Jake’s safety and development.

What is the significance of this evidential lacuna? The Court’s powers to exercise its inherent parens patriae jurisdiction are limited by section 100 of the Children Act 1989, which, so far as material provides:

No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

The court may only grant leave if it is satisfied that—

the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

This subsection applies to any order—

made otherwise than in the exercise of the court’s inherent jurisdiction; and

which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).”

There is in this case no order falling under section 100(5) through which the local authority’s aims can be achieved, so the condition for exercising the inherent jurisdiction in section 100(4)(a) is satisfied. However, in my judgment the local authority have failed to show reasonable cause to believe that Jake is likely to suffer significant harm in the absence of a DOLs order, so the condition in section 100(4)(b) is not satisfied. The management of Jake by the YOT is sufficient to exclude any reasonable cause for belief that Jake might suffer significant harm. The Court cannot therefore invoke the inherent jurisdiction.

I say this for three reasons. Firstly, the local authority are wrong in supposing that there will be no sanction if Jake absconds from his placement. On the contrary he has a very strong incentive not to, since, if he absconds, he is very likely to have his licence revoked. The same goes for the other terms of his licence. The local authority’s view that there is no alternative to a DOLs order is severely undermined.

Secondly, the licence conditions permit the form of “step-down” which the local authority consider is desirable. There is no reason to suppose that the YOT are not cognisant Jake’s needs in this regard. Even if the YOT took the view that more freedom should be given to Jake than the local authority’s social workers consider desirable, there are no grounds advanced to me on which any public law attack might be made in the King’s Bench Division on any decision by the YOT to that effect. There is no reason to suppose that Jake will not receive appropriate support for addressing his sexual offending.

Thirdly, in this case the primary organ of the state with responsibility for rehabilitating young offenders is Staffordshire Youth Justice Services and the YOT responsible for Jake. The social work team of the local authority has only a secondary responsibility for Jake’s rehabilitation. It is not for the High Court sitting in its parens patriae jurisdiction to micro-manage what a body such as the YOT, which operates in a specialist area of the criminal justice system for young offenders, might consider the best course for managing a particular young offender released into the community on licence. There are no grounds for supposing that the YOT is not doing what it considers to be in Jake’s best interests. Thus the absence of evidence from [the YOT supervisor] is not in my judgment fatal to Jake’s and the Guardian’s opposition to the local authority’s application.

Accordingly I refuse to extend the DOLs order.

As I indicated at the hearing, if the local authority wish to seek to appeal my refusal of the DOLs order, I would be willing to give a short extension both of the DOLs order and of the time for applying for permission to appeal so that the local authority can formulate their grounds of appeal.