Last week at a hearing in Cardiff, His Honour Judge Furness KC made orders authorising measures which amounted to a deprivation of the liberty (DoL) of a teenage girl. I observed the hearing under the new Reporting Pilot that is operating in that court.
As noted by the judge, the case involved a young person displaying the sorts of behaviour that are sadly typical of ‘this sort of case’, by which I mean deprivation of liberty applications: Behaviour that is impulsive, out of control, and very dangerous – either to the child or those around them. Something has to be done to try to keep them safe until they can be helped to move forward. Court approval is required to ensure that ‘something’ is lawful and in their best interests.
At the outset of the hearing I was provided with a copy of the lengthy case summary which set out in painful detail the chronology of difficulties in this young person’s timeline. The facts I read about in this case were indeed ‘typical’ of DoL applications, but no less shocking and distressing for all involved for that. I don’t doubt that the wider public too would find the detail shocking and distressing, but also the fact that such extremes of behaviour and distress are themselves so commonly and increasingly encountered in the family court. In this post I’m not going to give you gratuitous detail, but enough I hope to help you understand the gravity of the issues at hand.
These are not easy cases. As a string of judgments delivered by senior judges makes plain, there is never enough accommodation for this cohort of youngsters. Finding somewhere regulated and suitable that can contain and meet the needs of this growing group of very distressed young people is nigh on impossible. As if to illustrate the frequency with which courts are having to deal with these systemic issues, I spotted another article as I sat down to write: Mother of suicidal girl held in locked hospital room ‘frightened’ for child’s life (Louise Tickle writing in the Guardian about a case heard by Mrs Justice Lieven).
The case I observed appeared to have a background of precisely these sorts of difficulty – at the hearing I attended, the local authority had just been able to identify a registered placement that could take the young person temporarily, before moving her on to a more permanent placement that was in the process of amending its registration to accommodate an extra child. As an observer dropping in, even this had an element of precarity to it that seemed not to be noted by those involved in the case – perhaps in comparison to the levels of precarity and uncertainty to date, this seemed like clear waters ahead. Everyone seemed confident the registration would be amended and the transition would proceed according to plan.
The hearing was not attended by the parents of the child, who was under the care of a Welsh local authority. She had lived away from her parents for many years, for a time with an extended family member (also absent from court), before being received into foster care. She hadn’t managed in foster care, apparently as a consequence of earlier adverse and traumatic experiences, and had ended up requiring residential settings and ultimately a deprivation of her liberty. This teenage spiral out of control and into secure or severely restricted living arrangements is familiar to lawyers and judges who undertake this work. As I read the lengthy case outline that the court provided me with, I was struck by how many of the events featuring in this young woman’s chronology could have been drawn from one of my own cases – the traumas, the ups and downs, the pain and injury, the ever escalating and ingenious ways to escape or to self injure, the small steps forward and the sudden lurches back. It is horrible and predictable to watch and very difficult to stop, or to slow down and unwind. The court process feels ineffective as a way of making things better, and the deprivation of liberty order itself is often a huge source of resentment for the young person at the centre of the case, making them feel even more out of control.
Here, the authorised measures were 3:1 supervision (sometimes 2:1) and things like locking of doors and windows, removal of sharps, checking of bags and rooms and removal of phones. The judge made a point of referring the lawyers to a recent judgment of Mr Justice Macdonald (Manchester City Council v P (Refusal of Restrictions on Mobile Phone) (Rev1)  EWHC 133 (Fam)), noting that some of these measures (eg phone removal and checking) were simply an exercise of the local authority’s parental responsibility (which it has under a care order), rather than requiring authorisation as a deprivation of liberty. However, he did make (what I understood to be) a declaration that taking the steps proposed did fall within the scope of the local authority’s powers as corporate parent, thereby protecting them against complaint or claim. This is an area that I know judges, lawyers and social workers alike find very tricky, and sometimes it can feel as if the need to cover the corporate or individual professional’s ‘back’ for later complaints of an unlawful deprivation can detract focus from actually getting the right plan in place on the ground.
During the short hearing I attended, I didn’t get much of a sense of the young person at the heart of this case. Whilst the detail of the self harm, substance abuse, violent and dysregulated behaviour were shocking to read, they were nothing out of the ordinary to a lawyer who has done a few DoL cases. The child wasn’t present and nor was her Cafcass guardian. Her lawyer said little and didn’t oppose the order on her behalf, although I formed the general impression from remarks made by the judge that the child was unhappy with the continuation or terms of the order (I don’t know what, if anything, had been said in writing on her behalf). In reality, given the detailed background and recent events I had read about in the case outline, little could have been said against the continuation (with appropriate adjustments) of the order. Although things had been on a generally improving trajectory, the last week had seen a return to some very high levels of chaos and risk, and some quite serious physical harm with potential long term or even fatal consequences. As a mark of how serious this sort of case can be, the ‘improvement’ noted by the professionals and judge was to a point where there had been ‘only’ 6 episodes of absconding, 7 incidents of violence to others or damaging property, 5 occasions of taking drugs when absconding (cannabis and cocaine) and 2 suicide attempts in the preceding 10 weeks.
The hearing featured other familiar issues: around which CAMHS team would take responsibility for a young person who had once lived in one area and now was placed in another, queries around how much one team of professionals was ‘on board’ with the plans of the local authority, and gaps in information (in this case medical information).
The hearing itself was run calmly and efficiently and it was clear that the judge was well on top of the issues, and sympathetic to the efforts of professionals and to the young person’s situation, having been involved before and having read the updating papers.
Had this been a hearing where there was some contention about the local authority’s own conduct of the case, I may have challenged the judge’s direction that I could not report the name of the particular local authority, but there was no such criticism or complaint here, and the identity of the local authority doesn’t matter to the story I saw unfolding in that hearing. These are sadly now commonplace cases (although the judge said there are ‘not that many’ in the wider locality), and nothing I read stood out as atypical or unusual. There is a cohort of young people who are profoundly vulnerable. There are professionals and judges up and down the country who are trying to help keep them safe and help them learn to keep themselves safe. It feels like constant firefighting.
I would like to go back to see how this young person is doing when the case comes back in a few months. Inevitably things will not be ‘fixed’. But I will have my fingers crossed that they are a bit better, relatively speaking, and that life for that young person is moving forwards slowly towards the daylight, even though the monsters are pulling her back with every step.
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