This article is about Deprivation of Liberty involving children. To understand Deprivation of Liberty, I am afraid we have to start elsewhere completely…
Secure accommodation is a special kind of placement for children who are in care, who have a history of running away from their placement, are likely to do it again, and will be seriously harmed if they do. It’s also available for children who, if they are not kept in secure accommodation, might hurt themselves or other people. These places are often occupied by the most troubled and vulnerable of the children that the care system is tasked with keeping safe.
In 2020, there were 252 places available for children who require secure accommodation. The number of available places fell from the year before, when there were 259 places. The Department for Education says that, in 2020, 184 of those places were filled by children who were placed there by order of the family court.
For a long time there have not been enough secure accommodation places for children who need them. Demand far outstrips supply and any family lawyer who has ever had to advise a local authority will have had the experience of being told that there simply is not a bed available for the child.
Deprivation of Liberty
Now we can talk about DEPRIVATION OF LIBERTY. I am going to refer to this as DOL.
Can we pause there? I am not calling it DOLS; DOLS means something else about a case called Bournewood and an amendment to the Mental Capacity Act 2005. DOLS happened to ensure that people in care homes and the like weren’t being detained indefinitely. So calling Deprivation of Liberty in this sense ‘DOLS’ is confusing for everybody. Stop it, guys.
Why does all this matter? The answer lies in our old friend Human Rights, specifically Article 5 of the European Convention: Everybody has a right to liberty and security of person. Nobody can be deprived of that liberty except if the law allows it in some way. There are many ways that a child can be deprived of their liberty in a way that the law allows however. They include: Secure Accommodation; under the Mental Health Act if a child is under 16 and suffering from a mental disorder; the Mental Capacity Act if a child is over 16 and lacking capacity; a criminal court sentencing a child to be detained; and a couple of other ways. But outside of that, it’s unlawful and a violation of the rights of the child.
So if there are not enough secure accommodation places to meet the demand, that means there are a number of children who need detaining for their own safety but there is no legal way of doing it. The Supreme Court has said in 2019 that a parent cannot authorise these sorts of restrictions by exercising their Parental Responsibility. These interventions are so serious, that they must be approved by a Court in some form.
Step up, the HIGH COURT.
The High Court is really important. Like Ferrero Rocher important. The main reason that the High Court is important is because it has what my friend Suespicious Minds likes to call magic sparkle powers – that is the ability to step in and provide protection for somebody in need where the law doesn’t cater for them. Nowadays it is a safety net, and used to make sure that nobody slips through the net. And the lack of secure accommodation is a flipping great hole in the net. This is known as the Inherent Jurisdiction – the power the Court implicitly has arising from the duty of the Crown to protect the vulnerable.
Where a child needs to be deprived of their liberty and there is no secure bed, the local authority can go to the High Court and ask the Court to approve the arrangements. The Court will examine what restrictions are proposed and, if they are necessary, approve them as lawful. So this might mean that somebody always has somebody supervising them, or is locked in their room at night, or has their phone messages interrogated on a continuous basis. It may also mean that somebody may have to be regularly restrained, although the act of restraining a young person can be done lawfully and in an emergency without an order thanks to the Children’s Home Regulations. Whether it can be done regularly without a DOL authorisation is another matter for another day (spoiler: no).
There are some important differences: for example, secure accommodation placements are regulated by OFSTED whereas DOL placements are regulated only by DTBWCWNPALRO (that’s short for ‘doing-the-best-we-can-with-no-placements-and-little-regulatory-oversight’). It would be funny if it wasn’t true.
It should be said that the prevailing wind from the courts is one of despair. Only last week, Mrs Justice Knowles in Re Q echoed the words of the former president of the Family Division of the High Court, Sir James Munby:
“The lack of appropriate placements for highly vulnerable children and adolescents identified in much of the recent case law is, in the words of Sir James Munby, former President of the Family Division, “disgraceful and utterly shaming””
… An increasing shortage of secure placements and an increasing reluctance on the part of those secure placements to accept young people with the level and complexity of needs demonstrated by Q has meant that the courts have accordingly been asked to sanction the placement of young people in Q’s position in regulated and unregulated placements under the auspices of an order made under the inherent jurisdiction of the High Court authorising the deprivation of their liberty as an alternative to secure accommodation…”
The choice is sometimes an impossible one. Mr Justice Macdonald in LCC v G N  EWHC 2828 commented:
“The stark choice thus faced by the court is to refuse to authorise the deprivation of G’s liberty in an unregistered placement, which will result in her discharge into the community where she will almost certainly cause herself possibly fatal harm, or to authorise the deprivation of G’s liberty in an unregistered placement that all parties agree is sub-optimal from the perspective of her welfare because that unregulated placement is, quite simply, the only option available.”
… As I have noted above, it is a fundamental principle of a democratic society that the State must adhere to the rule of law when interfering with a person’s right to liberty and security of person. Within this context, I am left asking myself whether, where there is only one, sub-optimal option open to the court apart from allowing G back into the community where she may well end her own life, the court is really exercising its welfare jurisdiction if it chooses that one option, or if it is simply being forced by mere circumstance to make an order irrespective of welfare considerations. At best, the decision can be based on only the narrowest of such considerations, namely the bare need to prevent G from harming herself. Within this context, I echo the words of the former President in Re X (A Child)(No.3) as I am left acutely conscious of my powerlessness, of my inability to do more for G.”
Both of these cases are within the past three months, but I could name 20 from the past few years that echo the experience of practitioners day in and day out.
Where do you draw the line?
One of the big questions in this area of law is where to draw the line between a deprivation of liberty and doing what a parent should do to keep a child safe.
So for example, you wouldn’t need a DOL authorisation for a six year old because you would expect their parents to keep them under near constant supervision and to not let them out on their own. You would expect a parent to do that as part of their responsibility to keep the child safe.
To decide what sort of cases need DOL authorisation, the courts have developed what we call the ‘acid test’ – this is ‘whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives’. This is made more difficult in the modern world because, as Sir James Munby noted in a leading case, the average 15-year-old is often not free to leave their home. So we need to take a deeper look at what being confined actually means, and whether a young person is really under ‘complete supervision and control’.
Complete supervision implies that it is constant; perhaps that every waking moment of the young person will be supervised, apart from some time for personal care. As Mr Justice Macdonald noted in another important case, it does not matter whether the objective of this is to treat or protect in some way – it is still confinement that goes beyond what is normally lawful.
The characteristics of the young person also does not matter – a young man with an intellectual disability will be just as confined as a young man without. Similarly, if the young person does not object that does not mean that the restrictions are lawful if they are unable legally to give consent. This is ultimately a question to be answered on a case-by-case basis, and a judgement call for the social workers, lawyers and ultimately the judge.
What does a DOL look like?
Each case is different. Here are some of the common restrictions that may amount to a deprivation of liberty:
- Sometimes a young person will be subject to intense supervision on a 1:1 or maybe even 2:1 basis (or more).
- The young person may be locked in their room or the placement may have locks on the doors that stop the young person leaving.
- The young person may not be allowed out on their own, or they may be supervised or followed if they do.
- The young person might be restrained if they attempt to hurt another person, or if they try to leave the placement.
- A young person may have their telephone monitored, messages read and/or their internet access intensively monitored.
These restrictions should be regularly reviewed by the Court and should only be authorised if they are necessary and proportionate. There are no hard and fast rules; only that the restrictions should be appropriate as a response to the harm that the young person may suffer if they weren’t there, and that at all times the Court must be satisfied that the restrictions are in the best interests of the young person.
Some final thoughts…
These are difficult cases; the consequences of getting it wrong can be catastrophic for the young person either way. Confinement can cause anguish and hurt to a child, but equally so can the harm you need to protect them from as a social worker. So where should we draw the line? Is it possible? There are too many decisions where the Court is faced with Catch 22, as above, and DOL may be considered in those circumstances as the least worst option. Does the present situation, where DOL has emerged as a sticking plaster to a much bigger problem, do us credit as a society when this is the response to our most vulnerable?
In Lancashire County Council v G/N (I have referred to this above), several judgments were published by Mr Justice Macdonald expressing dissatisfaction at the availability of placements and the suitability of DOL as a response to our most vulnerable children.
Jerry Springer used to finish his shows by leaving the audience with something to think about. Well, Mr Justice Macdonald’s opening thought from the Lancashire Case will be my last for today*:
“In relation to children, [the measure of a society being measured by how it treats its most vulnerable people] was perhaps most eloquently and most memorably expressed as “there can be no keener revelation of a society’s soul than the way in which it treats its children”
*Will I get dis-barred for comparing one of Her Majesty’s judges to Jerry Springer? Let’s hope not. I have nothing but admiration for both.
If you want to know more about secure accommodation, Julie Doughty’s article from 2019 is an excellent place to start.
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Feature Pic – The Royal Courts of Justice, Strand, London WC2 © Barbara Rich