This is a guest post by Camilla Parker, lawyer and independent consultant specialising in the legal rights of children and young people in need of mental health care. She explains why judges in two recent cases have expressed strong views about the lack of provision for children who need to be detained for their own welfare.

On 10 October 2018 (World Mental Health Day), The Guardian reported on the judgment of Her Honour Judge Lazarus in O (A child: No Available Secure Accommodation) [2018] EWFC B60. (Owen Bowcott, “Judge condemns ‘unacceptable’ lack of secure accommodation for children”).   The judgment begins:

“This case is yet another sorry example of the state failing a child in need…”

The cause of the judge’s outcry was her inability to grant a secure accommodation order for a young person, “O”, on the basis that no appropriate placement could be found for him, despite significant efforts by the local authority to do so.  Although O was “evidently at risk of harm” and met the criteria under section 25 of the Children Act 1989 (which concern likelihood of absconding and risks of harm and injury), HHJ Lazarus was faced with the “wholly unacceptable situation” of being prevented from making the order, due to the lack of secure accommodation placements, despite “assiduous” efforts by social workers to find one. Given O’s history (he had been involved with gangs and drug dealing) and his age (16½), HHJ Lazarus felt that the opportunity to provide him with therapy to assist him with his disruptive childhood experiences and consequent conduct disorder would be lost.  

Similar problems have been raised by other judges, most notably Sir James Munby, the former President of the Family Division, who in the case of Re X (A Child) (No. 3) [2017] EWHC 2036 (Fam) criticised the “disgraceful and utterly shaming” lack of appropriate in-patient psychiatric placements. This sentiment is clearly shared by HHJ Lazarus: 

“Like my colleagues before me, whose published judgments increasingly feel like heads banging against brick walls, I am dismayed, frustrated and outraged: and to quote the former President of the Family Division from last year’s case of Re X, I am deeply worried about the risk that “we will have blood on our hands”.

Seeking a court order under section 25 of the Children Act 1989 is one of the potential legal routes for authorising a child or young person’s detention  (or in other words, lawfully confining a child outside criminal proceedings). Other potential routes are:

  • an application for admission to hospital under the Mental Health Act 1983 (where the person requires a period of in-patient assessment and/or treatment for mental disorder) (See, for example, Bethany’s case)
  • an application to the Court of Protection for an authorisation of the deprivation of liberty of a young person who lacks capacity under the Mental Capacity Act 2005
  • an application to the High Court for an order authorising the child or young person’s deprivation of liberty under its inherent jurisdiction.

Which legal route is applicable will depend on the circumstances of the case.

In addition, there is the contentious issue of whether, and if so, in what circumstances, parents can authorise the confinement of their child. The Supreme Court has recently considered this important question and its judgment is awaited.

The use of the inherent jurisdiction (third point above), was recently considered by the Court of Appeal in Re T (A Child) [2018] EWCA Civ 2136  Like Re O, the case stems from the lack of secure accommodation in England and Wales. Where local authorities have a secure placement available but this is not in a children’s home approved as secure accommodation for the purposes of section 25 Children Act 1989, they need to apply to the High Court for an order under its inherent jurisdiction to authorise the child or young person’s placement in that alternative accommodation.

Having dealt with the legal issues in Re T (these are discussed by Suesspicious Minds in “Magical sparkle powers (repeat to fade)”), Sir Andrew McFarlane, President of the Family Division, giving judgment for the whole court, made a point of considering the wider issues of concern arising from the lack of secure accommodation. There was no criticism of local authorities’ seeking such orders in circumstances where the child or young person would fall within the section 25 criteria but “who fall outside the statutory scheme solely as a result of the lack of available approved secure children’s homes” given the need to protect the welfare of that child or young person.  However, the President expressed his concern:

“… that so many young people are now being placed in secure accommodation outside the statutory scheme laid down by Parliament in units which, by definition, have not been approved by the Secretary of State as secure children’s homes.”

The court had earlier noted it had “not been possible to obtain firm data as to the apparent disparity between the demand for secure accommodation places and the limited number available”. Although there was also a lack of information on the number of applications to the High Court for “a restricted liberty declaration under the inherent jurisdiction”, anecdotal evidence suggests that there are at least 150 such applications per year (which would be about three applications a week) but probably more. The President highlighted the lack of scrutiny of these placements:

“Whilst the High Court has a duty to consider such cases and must come to a decision taking account of the welfare needs of the individual young person, in the wider context the situation is fundamentally unsatisfactory. In contrast to the Secretary of State, the court is not able to conduct an inspection of the accommodation and must simply rely upon what is said about any particular unit in the evidence presented to it. [Our emphasis]. In like manner, where a local authority, as is typically the case, is looking to place a young person in a bespoke unit a great distance away from their home area, the local social workers must make decisions at arm’s length and, it must be assumed, often without first-hand detailed knowledge of the particular unit.” (para 88)

Concerns have, however, also been raised about the adequacy of care for children’s mental health and well-being, in secure children’s homes that are regulated under section 25 of the Children Act 1989.  The Prisons and Probation Ombudsman’s investigation into the deaths of two children found that although unconnected, there was “a common theme about the ineffectiveness of wellbeing checks”. In relation to R, who had taken her life (and was known to be a high risk of suicide or self-harm), although staff were found to be caring and committed, there was “no coherent framework for her mental health care”. In relation to another child, S, who had died of natural causes, shockingly, checks carried out “were ineffective as they failed to identify that he was no longer alive” (Joe Lepper, ‘First suicide for 20 years in secure children’s home’ C&YPNow 12 October 2018).

Judicial concern about the lack of appropriate placements for children and young people in need of secure accommodation reflects a wider and significant problem of inadequate provision for children and young people’s mental health care. The “spending watchdog” (the National Audit Office) has recently reported on the inadequacy of funding for mental health services for under 18s, stating that it “will fall well short of meeting a growing demand for help” and that despite plans for further investment there would be a “significant unmet need”.

Sadly therefore, the dismay, frustration and outrage expressed by Judge Lazarus earlier this month is unlikely to be the last time the judiciary feels compelled to raise concerns about the lack of adequate provision for a child in need.

Image: Evalia Josefina on Flickr