At the beginning of this year, I wrote a short post which tried to explain the increasingly troublesome area of Deprivation of Liberty in an accessible way. It is, in effect, the power of the High Court under its ancient powers of protection to authorise that a child may be deprived of their liberty in a way that would otherwise be against the law.

Applications for authorisation of this kind have increased in number in the past few years. One of the biggest reasons for this is that there is simply not sufficient secure accommodation provision, to ensure that the most vulnerable children needing the highest level of support and supervision can be protected in a safe and regulated environment, which is either secure accommodation or Tier IV provision, which is the detention of a child with a serious mental illness, and severe needs, on medical grounds.

The result of living with an inadequately resourced and funded child protection system is that demand outstrips supply of such places by a considerable degree. But each figure on the demand chart is a vulnerable child, with severe and immediate needs, who requires the protection of those able to provide it. Alternative solutions are therefore found: placements are cobbled together and packages of support and supervision are sourced and bought in at great expense from units that charge thousands of pounds per week to the local authorities vying for their services. This provision is not approved by OFSTED or regulated, and so, absent the authorisation of the High Court, to detain and supervise a child in this setting would be a breach of the child’s human rights under Article 5 ECHR. In short, local authorities cannot come up with stop gap solutions to protect the most vulnerable children without the permission of the Court.

An independent court and judicial system is one of the most important safeguards against tyranny and the arbitrary exercise of state power. Therefore, once a provision has been identified and suitable supervision is compiled, it is up to a High Court Judge to determine whether the arrangement required to keep the child safe is:

1. As a matter of fact, amounting to a deprivation of the child’s liberty, and
2. In the child’s best interests.

In my January post, I highlighted some of the more recent judicial posts in which despair at the present situation has been articulated. Sir James Munby referred to the lack of appropriate placements for vulnerable children as “disgraceful and utterly shaming”. With no other options, judges are often forced to choose between the lesser of two evils – an impossible choice.

This is all background to the decision of Wigan MBC v Y et al [2021] EWHC 1982 (Fam), published yesterday.

What is the case about?

This case is about Y. Y is a 12-year-old boy. There is currently a care application before the court which was brought because Y is said to have suffered years of physical and emotional harm in the care of his father. The local authority currently shares parental responsibility for Y on an interim basis.

Y has very complex needs, including potentially ADHD and autistic spectrum disorder. He has a diagnosis of epilepsy. Y’s behaviour has become increasingly unmanageable, and he has posed a risk to himself. He had to be provided with segregated learning by his school because of his heightened state. He posed a risk to those who he interacted with, including the public. In early 2021, Y began to tell his school that he wished to end his life. He acted on this by placing a seatbelt around his neck. When the GP came to visit him at home, she saw Y waving two knives and had to call the police.

In early July 2021, Y was taken into local authority foster care and placed in a residential unit.

Y’s self harming behaviour continued and, two days into his stay in the residential unit, he tried to hurt himself with a screwdriver and hang himself with a phone charger cable. When attended to by medical staff, he was blue in the face. He fought against the life saving help he was being given. He was restrained and admitted to a children’s ward, where he has remained.

However:

On 4 July 2021, at 3pm, Y absconded from the ward following a further incident in which he had become aggressive and combative with staff. Y was recovered to the ward by police, social workers and security staff. He was returned to the ward in handcuffs. Upon removal of the handcuffs, Y crawled under the hospital bed and attempted to bring the bed mechanism down on himself. He was pulled out from under the bed by police and restrained on a mattress situated on the floor. The handcuffs were re-applied by the police at this point. Following this, Y had several incidents of holding his breath.

As a result of this, Y had to be chemically restrained and was given rapid effect tranquilisers.

Y was assessed by doctors as not presenting with mental illness. The clinical lead for the Child and Adolescent Mental Health Services assessed Y as needed a care setting with regular and experienced care staff, skilled in meeting the needs of children with difficulties like Y.

The problem is, such a placement was not available and could not be found. The hospital used its powers under the Mental Health Act 1983 to detain and restrain Y, as Y’s presentation further deteriorated and he tried, amongst other things, to self-harm by banging his head against a mental pole. Y further tried to assault ward staff which required police intervention and further restraint. He spat and hit out at the staff until further chemical restraint took effect.

An assessment was undertaken by the clinical staff:

During the course of their exchange Y stated that he wanted to sleep on the streets and did not want to go home as he wished to kill his father and himself. Y informed the AMPH (approved mental health professional – usually a specialist social worker) that when he self-harms it is with the intention of killing himself. When asked if he wanted to see or speak to his father Y became agitated and began to place objects in his mouth. Thereafter, Y became highly agitated, managed to kick the door of the ward open and attempted to abscond. Y became aggressive to staff and attempted to damage property. He was restrained by security staff. Once back on the ward Y became highly aggressive again and the police were called. The police officers were required to restrain Y and he was given a dose of rapid tranquiliser. Y made further attempt to harm himself at a later point by putting a carrier bag over his head and wrapping it tight. He was restrained for his own safety and passed out. When he came round he started banging his head against a wall and again attempted to kick down the ward to the door. Y attempted to punch the security staff and spat at them.

The outcome of the assessment was that Y was not detainable under the Mental Health Act 1983 and the tier IV provision that might have been offered was not required. Y’s issues were trauma based. It was recommended that Y be discharged into a therapeutic placement as hospital was not the right place for him to be. This recommendation was made over a week ago.

Y’s presence of the ward was causing problems for others too. He was a risk to staff and other children. So disruptive is Y’s presence that surgeries have been cancelled and children have been moved to other hospitals within the Northwest.

And so Y remains in hospital. He is in a sectioned off area. He cannot have shorts with a draw string, so he has to wear scrubs. The ward doors are shut and all moveable objects have been cleared. There is no door on his shower, meaning he has no privacy. He is being given daily chemical sedation. He has no socialisation whatsoever. He has 5:1 supervision, meaning he has five members of staff ‘on’ him at all times.

Even in this setting, Y has filled a sink with water and tried to drown himself. He has tried to suffocate himself with a pillow, meaning he has to sleep on a mat without a pillow. He has injured his arm but will not allow staff to treat the wound, which has become infected. He remains on the ward feeling caged, scared and a catastrophic risk to himself.

In spite of all of this, as the judge points out, there is no appropriate placement available to give Y the help he requires. This caused the local authority to invite the Court to authorise the status quo – with Y remaining in hospital on the paediatric ward – pending a more suitable option being identified.

What did the judge say?

He said no.

Why?

The job of the court as I have said above is two fold. First, to decide whether what is being proposed amounts to a deprivation of liberty. The question is does it meet the acid test of continuous supervision and control.

If not, authorisation is not needed. If so, the court asks itself whether the arrangements proposed are in the child’s best interests. If so, permission is given. If not, permission is refused.

In this case, the judge, MacDonald J, did not consider that it was in Y’s best interests to remain on the paediatric ward, even though there is no alternative placement for him. The judge found that the placement was so unsuitable – and at times grossly humiliating, with the removal of shower doors etc – that it would be ‘obscene’ for the Court to use its powers to authorise such a placement. No positives could be identified for Y, and he remains in a treatment setting which is not required, being restrained and restricted on a reactive basis in a setting that will never be able to meet his needs. It is one thing to say that a placement will do but is sub-optimal, it is quite another to say that a placement is completely unsuitable and obscene. The judge made clear that just because there is no alternative does not mean that the one remaining option is in a child’s best interests.

As the judge said:

“In this case, I consider that the current arrangements for Y are so inappropriate that they constitute a clear and continuing breach of his Art 5 rights. Within this context, the fact there is no alternative cannot by itself justify the continuation of those arrangements. All the evidence in this case points to the current placement being manifestly harmful to Y.”

What happens, then, to Y?

The local authority must find a suitable placement for Y. It is no longer authorised to keep Y on the paediatric ward. This is the role of the local authority; they are required by law to safeguard and promote Y’s welfare and protect his human rights. It is a matter now for the other arms of the state to do just that.

One of the pillars of transparency is that courts express their decisions in ways that are easy to follow. This is vital for public confidence in the justice system, so everybody can understand the reasons why decisions are made, and that they have been made in accordance with the law. This decision is a commendably plainly written judgment. Its impact is clear. No confusion can come from this paragraph:

“Judgments given by a court should be sober and measured. Superlatives should be avoided. It is likewise prudent that a judge carefully police a judgment for the presence of adjectives. However, and as the hearing proved, in this case it is simply not possible to convey the appropriate sense of alarm without recourse to such language. In this case, having observed that in his thirty years at the Bar he had never been in a position of having to ask a court to authorise a regime for a child “as shameful as this one is”, Mr Martin conceded on behalf of the local authority that, boiled down to its essence, his submission was simply that the court must today prefer the lesser of two acknowledged evils, the hospital ward or the street, in circumstances where there is currently no alternative placement. But that is not a solution that can be countenanced in a civilised society. The test laid down by the law is not which is the lesser of two evils but what is in the child’s best interests having regard to the child’s welfare as the paramount consideration. The parens patriae inherent jurisdiction of the court is protective in nature. As I have observed above, it would border on the obscene to use a protective jurisdiction to continue Y’ current bleak and dangerous situation simply because those with responsibility for making proper provision for vulnerable children in this jurisdiction have failed to discharge that responsibility.”

This decision brings to the fore, as the judge observed, the acute lack of proper provision and resources available for children like Y. The effect of this is not just to make Y’s life an utterly miserable experience, but it has been to affect children not involved in the court system whose surgeries have been moved, and health staff who have been expected by reason of there being no alternative to put themselves at considerable additional risk to keep Y safe. As the judge observed:

“Within this context, the adverse impact of the lack of appropriate provision that the courts have to wrestle with week in and week out in cases of this nature is now also impacting on the health and welfare of children and families who have no involvement with the court system.”

If you have time, please do read the decision. It is characteristically accessible and leaves nothing unsaid. The experience of Y is ultimately a political problem. It is a matter for those we elect to decide how best to share the pie, informed by the values and priorities it considers important. I cannot remember having read a more despairing or sadder judgment. It is a shocking indictment on the world we live in that with the addition of ‘acht’ to Y’s initial, there is a bounty of funding available. The grim reality is that Y is just the latest victim of a system starved of cash and unable to fulfil its primary purpose of keeping children safe.

Image: the Royal Courts of Justice. Thanks to Barbara Rich.