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The Case of X: A Wake Up Call

Michael Jones, barrister, Deans Court Chambers, Manchester, considers the lessons to be learned from the case of X which attracted considerable attention in the mainstream media.

Michael Jones, barrister, Deans Court Chambers, Manchester

Michael Jones, barrister, Deans Court Chambers, Manchester 

The President of the Family Division has recently handed down a series of judgments in the case of X. The case originally came to the attention of legal commentators due to the jurisdictional issues relating to the placement of the subject child, and many other children, in secure accommodation in Scotland; the case was reported as X (A Child) & Y (A Child) [2016] EWHC 2271 (Fam). Subsequently, a further judgment, X (A Child) (No 2) [2017] EWHC 1585 (Fam), was handed down following a hearing on 15 June 2017; that judgment provides a more detailed account of the circumstances of X as they were at that time, the level of her behavioural difficulties and the failure of the local authority to identify a suitable placement in advance of what was to be, in effect, a final hearing in care proceedings. At that point, X was subject to a Detention and Training Order made within the criminal jurisdiction, hence the issue was that of placement post-release. The court accepted that, given the extent of X's behavioural issues and the fact that the presumption of capacity remained (thereby removing the potential avenue of the Court of Protection), the inherent jurisdiction provided the only means by which to lawfully authorise what would undoubtedly be, on the facts of the case, a necessary and proportionate deprivation of her liberty in any placement to which she would be moved immediately following the expiry of the criminal sentence. The proceedings under the inherent jurisdiction therefore continued after the conclusion of the care proceedings.

Events then came to a head in the judgment reported as X (A Child) (No 3) [2017] EWHC 2036 (Fam). This judgment received a significant amount of media attention immediately following its publication on 3 August 2017 and was brought to the attention of the wider public as a result. The President did not seek to underplay the severity of the situation, in which no appropriate placement had yet been identified for X, despite her release being only a matter of weeks away. Several of the concluding paragraphs of the judgment require repetition here, simply to remind us of their power:

"What this case demonstrates, as if further demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with. We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.

X is, amongst all her woes, a young person convicted in the Youth Court and a prisoner of the State. As long ago as 1910, a Home Secretary, speaking in the House of Commons, asserted that "The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country." In modern times the principle has expanded, so that, as is often said, "One of the measures of a civilised society is how well it looks after the most vulnerable members of its society." If this is the best we can do for X, and others in similar crisis, what right do we, what right do the system, our society and indeed the State itself, have to call ourselves civilised? The honest answer to this question should make us all feel ashamed. For my own part, acutely conscious of my powerlessness – of my inability to do more for X – I feel shame and embarrassment; shame, as a human being, as a citizen and as an agent of the State, embarrassment as President of the Family Division, and, as such, Head of Family Justice, that I can do no more for X."

For Sir James Munby to make such a statement (which upon a full reading of the judgment was, quite clearly, completely justified), stresses the severity of the situation and the apparent impotence that the court faced in light of the disturbing lack of available placement (and treatment) provision for X.

This article will not seek to repeat the facts of X's case any further. However it is essential that the series of judgments are read in full in order to appreciate the issues prevalent in the case and the severity of X's situation. The reason X's case is so important is because it has brought to the attention of the media and the wider public (and, in the event that they were not already fully aware, those in government), the dire situation that not only X, but many other children and adolescents with a similarly high level of mental health issues find themselves in. To gain an idea of the extent of X's needs, one only has to read the content of her "care specifications" in the document annexed to the judgment in X (A Child) (No 3). It makes for highly concerning reading. Unfortunately, those of us practising in both the public law children and mental health jurisdictions, are only too aware that there are many other young people with similar needs to X (indeed, the writer can think of at least one instance where the behaviours and care needs of a subject child were perhaps at a higher level than those of X). The crucial question that arises from the published judgments is, 'what needs to change?' The answer, in the first instance, appears overwhelmingly clear.

Children and young people with mental health issues: a question of resources

The first issue that needs to be addressed is perhaps the most obvious: the lack of appropriate placement provision for children with high levels of mental and emotional health needs, whose behaviours are simply unmanageable anywhere but in a clinical/therapeutic setting with suitably experienced staff. Any practitioner working in the public law arena will be only too aware that the prospect of any residential placement accepting a child with needs similar to those detailed within X's care specifications, are beyond slim. It is also the experience of many of us that placements of children with similar levels of behavioural issues in secure accommodation may well break down; put simply, the staff in secure children's homes can find that they are unable to manage the behaviours of these children and will deem their needs as being best met within a clinical setting, where they can be cared for by appropriately trained and qualified staff. Staff in secure children's homes are not trained medical or nursing professionals and recent experience of the writer suggests that secure units will either refuse to accept certain children or give notice to terminate the placements following admission, when it transpires that they cannot manage the behaviours of the child safely; again, high levels of self-harming and suicidal behaviours are often best (and perhaps only safely) managed within clinical/therapeutic provision where a child can receive the appropriate care and intervention that they require. In any event, secure accommodation is itself a scarce resource, with the secure accommodation network often being unable to meet the demand for placements at certain times (hence the reason that the children in the X & Y case were placed in Scotland, with there being no available secure placements in England and Wales). Children who require treatment for their mental health needs, however, are unlikely to receive this within secure accommodation (or for that matter any other form of accommodation aside from a specialist therapeutic, clinical, or hospital setting) and simply 'containing' these children within a secure unit whilst their behaviours continue to escalate in the absence of treatment, is the metaphorical equivalent of attempting to put out fire with vast quantities of flammable liquids. So where can these children be placed?

The answer, if there is a definitive answer, is far from straightforward. Inpatient mental health provision for children and adolescents is in the main sourced by NHS England in the form of CAMHS Tier 4 beds. There is unfortunately a limited number of these beds countrywide. In early 2015 there were 1,440 CAMHS inpatient beds in England (admittedly a 71 per cent increase since 1999), with nearly half (47 per cent) being run by independent providers. On average there are 2.5 beds per 100,000 of the total population in England. The issue, however, is not only one of overall capacity but also of distribution nationally; geographical disparity has led to numerous capacity problems in the past financial year, with three occasions where there were no beds at all available in at least one region of England. This has resulted in children being accommodated on adult mental health wards, with such placements often being far from appropriate and despite the duty of providers under the provisions of the Mental Health Act 2007, to attempt to prevent this from occurring. Experimental NHS data show that in 2016 children under 16 spent a total of 1,657 days on adult wards (Mental Health Services Monthly Statistics, NHS Digital: the most recent report for March 2017 was published 20 June 2017). A further problem is that of a lack of effective community treatment provision (64 per cent of inpatient care providers who responded to the 2014 NHS England Tier 4 Review reported that they did not have an intensive outreach team); this leads to delayed discharge resulting in nearly 9,000 wasted days in NHS children's mental health units between October 2015 and February 2017, where a young person was ready to leave but waiting to be discharged. It therefore appears that the issue is not only one of capacity of mental health provision for children and young people, but also geographical distribution and the absence of suitable community treatment provision in many areas, leading to delayed discharge . The conclusions of the excellent June 2017 report by Emily Frith, Inpatient provision for children and young people with mental health problems, are as follows:

"The quality of child and adolescent inpatient services has improved. Nevertheless, measurement against the Quality Network for Inpatient CAMHS (QNIC) standards demonstrates the need for a continued focus on quality. It is right that the Care Quality Commission has included more detailed inspections of CAMHS within its latest inspection framework. A new measure of patient experience should also be considered, to provide a barometer for the quality of care. More research is needed into the outcomes achieved by inpatient settings and best practice should be shared and evaluated on a more consistent basis in future.

The capacity of the system and the quality of provision cannot be separated from discussions about adequate staffing levels. The government should work with Health Education England to plan appropriately to address concerns about recruitment difficulties and high levels of temporary staffing."

This hardly makes for encouraging reading, especially when taking into account the fact that when X's case came before the President on 31 July 2017, there was no suitable placement available in the country for X. Hence, what initially appears to be a 'concerning' lack of provision, becomes shameful.

Placing children in adult Psychiatric Intensive Care Units (PICUs) as an interim measure pending an appropriate Tier 4 bed becoming available is very often not only a far from appropriate placement for a child, but will also prove difficult to facilitate given that adult units may well reject any referral received in respect of a child; adult units can reject children for various reasons (for example existing inpatient mix and the risk posed to a child emanating from this). It is therefore perhaps not surprising that there will be situations such as that in X's case, where there is simply no available clinical provision nationwide for a particular child, even as a temporary measure whilst the search for a long term placement continues. Providers will usually undertake their own assessments prior to making a decision in relation to admission and can reject a child for any number of reasons, ranging from the child's individual needs, to the provider's 'inpatient mix'. The reality in these circumstances is that the admission of a child into any particular clinical placement will depend upon that provider accepting the child; this may prove to be a source of great frustration to those attempting to locate an appropriate placement for a child. In terms of interim measures pending a suitable bed becoming available, the MHA Code of Practice provides as follows:

"If the doctors reach the opinion that the patient needs to be admitted to hospital, it is their responsibility to take the necessary steps to secure a suitable hospital bed; it is not the responsibility of the applicant. In some cases, it could be agreed locally between the local authority and the relevant NHS bodies and communicated to the AMHP that this will be done by any AMHP involved in the assessment. ...

Clinical commissioning groups (CCGs) are responsible for commissioning mental health services to meet the needs of their areas. Under section 140 of the Act, CCGs have a duty to notify local authorities in their areas of arrangements which are in force for the reception of patients in cases of special urgency or the provision of appropriate accommodation or facilities specifically designed for patients under the age of 18. The arrangements should include details of which providers in their area can receive patients in cases of special urgency and provide accommodation or facilities designed to be specifically suitable for patients under the age of 18. CCGs should provide a list of hospitals and their specialisms to local authorities which will help inform AMHPs as to where these hospitals are. This should in turn help inform AMHPs as to where beds are available in these circumstances if they are needed. ...

The NHS Commissioning Board (known as NHS England) is responsible for the commissioning of secure mental health services and other specialist services. NHS commissioners should work with providers to ensure that procedures are in place through which beds can be identified whenever required." [Paras 14.77-14.79]

When one reads the judgments in X's case, particularly taking into account the absence of any appropriate placement at the time of the hearing, it has to be questioned whether there are in fact sufficient arrangements in place in all areas, for children who require urgent accommodation and care pending more appropriate long-term specialist placements being identified or becoming available.

Some clinical providers may only be prepared to accept children if they are detained under the provisions of the MHA 1983. This is not always the case and there are private providers prepared to accept a child into a clinical/therapeutic environment without the need for a 'section' to be in place. In the absence of valid consent, if a child is not detained under the provisions of the MHA and is not subject to an order made in the criminal jurisdiction, then the only way that he or she can be lawfully deprived of their liberty in such a placement is via the use of the inherent jurisdiction (assuming that the avenue of the Court of Protection is not one that is open). Once a child is detained under the provisions of the 1983 Act, then the jurisdiction of the Family Court, High Court and the Court of Protection in so far as placement is concerned, is effectively ousted. The more difficult cases will often involve situations where a child requires treatment/intervention in a clinical setting or therapeutic environment with accompanying care arrangements which will constitute a deprivation of their liberty, and yet who is not eligible for detention under the 1983 Act; this may limit the amount of providers who will actually be willing to accept the subject child. The child thus falls into a "gap" in the system; they will not be accepted by (or will at least not be prioritised by) some clinical providers (whose resources are already likely to be stretched) due to the fact that they are not detained under the 1983 Act, whilst the level of their individual needs will often mean that any community or residential placements (or indeed secure children's homes) will be unwilling to accept them on the basis they cannot meet such needs. These vulnerable young people are then in a state of limbo.

The current legal framework

The issues discussed so far are those of resources and the inadequacy of the same. From the legal perspective, there are further issues which can be identified from cases similar to that of X. Many children in X's position will require treatment under the provisions of the Mental Health Act 1983 (most commonly sections 2 and 3), which will allow for the lawful authorisation of their detention in a placement where they receive appropriate treatment; detention under the Act can, however, only occur in a hospital (as defined in section 145(2) of the Act) or in a registered establishment (as defined in section 34(2) of the Act). Therefore if a young person is to be accommodated and treated elsewhere then no question arises of detaining that person under the Act. Accordingly, it follows that if a child does not meet the criteria for detention under any provisions of the 1983 Act, then the Act will not provide a legal avenue to allow for the treatment of such children in an environment in which they are to be deprived of their liberty. Secure accommodation, as detailed above, is highly unlikely to be appropriate in such cases; hence s.25 of the Children Act 1989 is not an option and the only lawful means to effectively authorise a deprivation of liberty for the purposes of any therapeutic intervention/treatment, is under the auspices of the inherent jurisdiction (assuming, of course, that the subject child is not a 16 or 17 year old lacking decision making capacity in relation to care received and residence, in which case the jurisdictional gateway of the Court of Protection is opened).

The extensive body of case law in respect of the use of the inherent jurisdiction to authorise the lawful deprivation of a child's liberty will not be addressed in detail here, save to say that perhaps the key principle is that any deprivation of liberty must be incidental to the purpose of the accommodation, with that purpose most often being to allow a child to receive treatment/intervention in a safe and restricted environment (the line of case law emanating from the decision of Wall J, as he then was, in Re C (Detention: Medical Treatment) [1997] 2 FLR 180, is quite succinctly summarised by Sir James Munby in X (A Child) &Y (A Child) at paragraphs 43-44). The writer is aware of an increasing number of cases in which the inherent jurisdiction is being used to lawfully authorise restrictive care arrangements for children in therapeutic placements and, although no statistics are available to hand, its use in these situations appears to be more frequent following the series of Keehan J decisions, most notably that of Re AB (A Child: deprivation of liberty) [2015] EWHC 3125 (Fam). The inherent jurisdiction is therefore being used to address a lacuna in the statutory provisions. Indeed, the inherent jurisdiction was initially seen as the appropriate option in X's case, before the matter strayed into the jurisdiction of the Mental Health Act 1983.

There is an argument to suggest that there needs to be statutory reform in this area in the form of new statutory provisions to allow for the lawful deprivation of a child's liberty, so as to ensure that they can receive appropriate therapeutic input/treatment in a safe and restrictive environment in cases where the provisions of the MHA 1983 and MCA 2005 are not applicable (thereby filling the apparent lacuna). The discussion of the appropriateness of the use of the inherent jurisdiction in Re C [2016] EWHC 3473  makes for interesting reading, particularly the submissions made on behalf of the Official Solicitor to the effect that the use of the inherent jurisdiction to authorise a deprivation of liberty was not Article 5 compliant (the force of such a submission would appear to be undermined by the fact that there are procedural requirements necessitated by the use of the inherent jurisdiction in this manner, these essentially reflecting the those applicable to orders made pursuant to s.25, as discussed by Wall J in Re C (Detention: Medical Treatment) and further referred to by the President in Re X & Y).

The reality is however, that the legal avenue by which placements incorporating restrictive care arrangements can be lawfully authorised is not the most pressing issue for children with needs similar to X; practically, very little can be achieved in the absence of appropriate placements for these children.

What needs to change?

In many cases that are brought to the attention of the media, there is an initial level of coverage, following which discussion and debate falls away as the public interest moves on to different areas of debate and the issues raised are quickly forgotten; that cannot be allowed to happen in this case. The government has to take some form of action and the dire situation facing children such as X must not be permitted to go on for any longer. Whilst we live in a time of austerity, the fact is that these children are amongst the most vulnerable in society; there must be appropriate investment in child and adult mental health inpatient facilities, whilst consideration also needs to be given to the lack of suitable placements available for children with high levels of individual need and who requiring treatment/therapeutic work in a restrictive setting, but who do not fall into the limited category of individuals eligible for detention under the 1983 Act.

A final point relates to the media criticism that has been aimed at our judiciary during recent times, from that surrounding the legal challenge to Brexit, to the suggestions that the judiciary are too intertwined with 'the establishment' to be fair and impartial. X's case and the judgment delivered in X (A Child) (No 3), which is staunchly critical of the current situation in this country regarding children with X's level of needs and which was, at the President's direction, served upon the Chief Executive Officer of NHS England, the Secretary of State for the Home Department, the Secretary of State for Health, the Secretary of State for Education and the Secretary of State for Justice, surely undermines any argument as to the judiciary lacking independence or being unduly loyal to the establishment. X's case has reminded us how lucky we are to have a strongly independent judiciary in this country and how the media should value and seek to preserve this, rather than attempt to constantly direct criticism and blame towards it.  Whether the judgment in X's case acts to improve the situation in relation to vulnerable children and young people with mental health needs will remain to be seen, however the initial responses of those in authority appear to be offer some encouragement, albeit caution is required and only time will tell.

Michael Jones was instructed as counsel for the local authority in the case of X.