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Depriving children of their liberty: Resources and Reform

Michael Jones, barrister, Deans Court Chambers, Manchester, considers the use of the court’s inherent jurisdiction in some deprivation of children’s liberty cases and calls for urgent reform


Michael Jones, barrister, Deans Court Chambers, Manchester

In early August 2017, Sir James Munby who was the President of the Family Division at the time, handed down a judgment in the case of Re X (no.3) [2017] EWHC 2036. The judgment, and two further judgments in that case which followed shortly thereafter, attracted a significant amount of media attention, because they highlighted the wholly inadequate state of care provision for the most vulnerable of society's young people.

In August 2017, my article The Case of X: A Wake Up Call was published in which I outlined the status of the availability of CAMHS inpatient provision and I made a number of observations in relation to the increasing use of the inherent jurisdiction to authorise the deprivation of a child's liberty within placements providing therapeutic input.

Matters have progressed over the past year and what has become increasingly clear (indeed, this had been the situation for some time) is that the inherent jurisdiction continues to be used on a very regular basis, not only in order to authorise the deprivation of children's liberty within therapeutic and clinical settings, but also to effectively 'contain' children with significant behavioural issues, due to a lack of available registered secure accommodation placements. Cases such as A Child (no approved secure accommodation available; deprivation of liberty) [2017] EWHC 2458 (Fam) and A Local Authority v SW & Ors [2018] EWHC 576 (Fam) are examples of two such cases.

The facts in A Child (no approved secure accommodation available; deprivation of liberty) [2017] EWHC 2458 (Fam) are succinctly summarised by Holman J within the judgment and reflect circumstances with which many practitioners will unfortunately be all too familiar;

"…the local authority would have wished by last June to place the child in an approved secure accommodation placement. Such placements are currently very scarce and they were unable to find one. So it was that they hoped to place him in a unit which is not approved secure accommodation at X. Their plan was, however, that within X he should, if necessary, be subject to considerable restraint, including physical restraint, in order to keep him safe and prevent him from absconding, as he had done on occasions in the past. According to the case summary for today at paragraph 10, 'The staff of X are appropriately trained in de-escalation and physical restraint'.

Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as secure accommodation orders. Such orders may be made and, indeed, frequently are made by courts, including courts composed of lay magistrates. It is not necessary to apply to the High Court for a secure accommodation order. However, as no approved secure accommodation was available, the local authority required the authorisation of a court for the inevitable deprivation of liberty of the child which would be involved."

Similarly, in A Local Authority v SW & Ors [2018] EWHC 576 (Fam) , Mostyn J made the following observations;

"In recent times, a phenomenon has arisen, as I have said, whereby insufficient places have been made available to meet the demand for children to be placed in secure accommodation. Therefore, a mirror procedure has been devised by the High Court which has authorised placements in secure environments for children in places not authorised pursuant to the regulations made under section 25 of the Children Act"

Presumably, the rationale for permitting the use of the inherent jurisdiction in such instances (a lack of secure accommodation) is the fact that the absence of resources, in the form of available secure accommodation, makes it impossible to place a child within a registered secure children's home using section 25, hence local authorities seek authorisation under the inherent jurisdiction to deprive a child of their liberty within an alternative placement (for example a residential placement with a high level of restrictive care arrangements in place).

However, one has to question whether the use of the inherent jurisdiction in this context is permissible. In my view it is not.

I would argue that the 'leave hurdle' set out within section 100 of the Children Act 1989 cannot be crossed simply by reason of lack of available resources. To cross that hurdle, the Court must be satisfied that in the particular circumstances of any case, no statutory scheme is available 1. If the section 25 criteria are established and the placement sought by a local authority is secure accommodation, with the primary purpose of the intended placement being the restriction of a child's liberty, then section 25 is clearly the appropriate statutory scheme available. An order pursuant to section 25 has been specifically designed to be permissive in nature and can be made in the absence of any available secure placement, with the local authority then having the authority to place a subject child immediately, upon a secure placement becoming available. The fact that there is no available placement in secure accommodation, does not therefore in itself, allow a local authority to overcome the leave hurdle set out within section 100(3) and (4) of the statute. If the section 25 criteria are met and the local authority seeks to place a child in accommodation specifically designed for the primary purpose of restricting that child's liberty, then there is an available statutory scheme under s.25 and the use of the inherent jurisdiction will be ousted accordingly.

Whilst the inherent jurisdiction can properly be invoked in order to lawfully authorise the deprivation of a child's liberty within a therapeutic or clinical placement where the deprivation of liberty is incidental to the primary purpose of the placement, it remains the case that there is no formal statutory scheme regulating a deprivation of liberty within such placements, albeit it has been made clear that in authorising the said deprivation, the Court will have regard to the scheme laid down by Parliament in the Children Act 1989, so as to ensure that the rights and safeguards provided for the child by section 25 are available 2.

Whilst it is appreciated that on this basis, the use of the inherent jurisdiction in such cases is capable of complying with the procedural requirements of Article 5 of the ECHR, one does have to question whether an alternative statutory scheme providing for the lawful deprivation of a child's liberty within placements that fall outside the remit of section 25 3, would be preferable. This would fill the lacuna currently existing in the statutory provisions that necessitate the use of the inherent jurisdiction in circumstances which seem to be arising on an increasingly frequent basis, in Courts throughout the country.

Secure Accommodation: current resources
According to the 2018 figures published by the Department for Education there were 255 approved secure accommodation places in England and Wales as at 31st March 2018 4. This is an increase of one place from the previous year (254 as of 31st March 2017, with that figure having remained stable for the preceding 3 years). There are 15 Secure Children's Homes in England and Wales, with two providers having closed in 2014. Of those 254 places, 120 were contracted to the Youth Justice Board ('YJB'), an increase from 117 in 2017.

2016 was the first year on record where the percentage of children accommodated on the welfare basis surpassed those placed by YJB. Whilst there was not one hundred percent occupancy of the approved places available, giving the impression that the current level of provision is adequate in order to meet the demand 5, in practice the places reserved for the YJB can result in numerous occasions when there is no welfare bed in England and Wales available to local authorities looking to place a child under the provisions of s.25.

The figures show 255 available places with 204 of those being occupied and 51 being available as of 31st March 2018, however it is not clear what proportion of the available vacancies are allocated to the YJB. The statistics merely state that 120 of the approved places in secure accommodation are allocated to the YJB.

The National Secure Welfare Commissioning Unit ('NSWCU') continues to act as the internet based referral vehicle through which secure accommodations placements are sourced. The NSWCU provides a helpful 'flow-chart' that describes the referral process and the measures that can be implemented if a welfare placement is not available. In the event that a welfare bed cannot be found within secure accommodation for a child, then the possible release of YJB beds can be considered and "if available, negotiation will be undertaken by the NSWCU and the YJB". The process set out by the NSWCU then goes on to state that "If (having considered YJB places) a placement is still not available, the responsibility for making appropriate accommodation arrangements for the young person remains with the LA responsible for the child". There is, accordingly, no guarantee that a secure placement allocated to the YJB will be made available to a local authority on a welfare basis 6. In the experience of the writer, YJB places are very often unavailable due to the demands currently placed upon the youth justice system within the criminal jurisdiction. 2016 was the first year on record in which the percentage of children accommodated on welfare placements surpassed the percentage placed by the YJB, reversing the previous trend in which YJB placements historically composed the majority of placements.

A further point of note is that of the 204 children accommodated in secure placements as of 31st March 2018, 46% had been accommodated for less than 3 months; a decrease from 55% in 2017. This is the first time the percentage of children accommodated for less than 3 months has fallen below 50% in the period between 2010 and 2018. There has therefore been a steady increase in the proportion of children accommodated for a longer period, with the 2018 figures showing 11% of children within secure placements having been accommodated for over 12 months. The average length of a child's stay within secure accommodation is increasing which has to be of great public concern.

Mental health provision for children: current resources
Mental health provision for children has an obvious and identifiable link with secure accommodation provision, in that some children who are subject to orders made pursuant to s.25 (and indeed, those who have their liberty restricted as a result of declarations made under the inherent jurisdiction), will present with underlying mental health issues. Certainly, many practitioners in this area will be only too familiar with cases where the subject child has been open to agencies such as CAMHS for lengthy periods of time. The British Medical Association publication: Young Lives Behind Bars: The health and Human Rights of children and young people detained in the criminal justice system provides an illuminating illustration of the extent to which detention itself (and in using the word 'detention' I include placements in secure children's homes), can impact upon a young person's mental health.

October 2017 saw the publication by the Children's Commissioner of Briefing: Children's Mental Healthcare in England a briefing on children's mental healthcare in England which runs to a little over 30 pages and is recommended reading.

It identifies what is termed as "a postcode lottery of care", highlighting the geographical disparity in mental health provision for young people and the huge disparity between spending on children's and adult mental health (an average 6 percent of the mental health care budget in local areas is spent on children).

To put this into context, a previous nationwide survey cited in the Briefing refers to the statistic of 9.6 percent of children aged between 5 and 16 having a mental health disorder; a worryingly high statistic on any interpretation. In relation to Tier 4 provision, there remain significant gaps within the information recorded and released in relation to how many children have to travel out of area to access treatment and how many children are referred for in-patient treatment but not accepted and the reasons for non-acceptance (with non-acceptance by providers having been another issue the writer has experienced in recent cases).

The available information shows that in 2016/17 there were 10,866 admissions to Tier 4 wards, whilst the recorded number of children who were admitted to adult wards in in 2016/17 was 294. The Children's Commissioner has been in the process of undertaking two projects in an attempt to increase understanding of Tier 4 provisions, the results of which are awaited with interest, particularly in light of the apparent lack of clear statistical information in this area resulting from the complexity of the system; in-patient care is commissioned nationally by NHS England from a range of NHS, charitable and private providers, whereas specialist community CAMHS services are commissioned locally by Clinical Commissioning Groups ('CCGs'), with universal services being provided by a mixture of CCGs, local authorities under their public health function, and by children's services as well as individual schools and colleges. There is then the complex regulatory framework; while most areas have an NHS Mental Health Trust, which will be overseen by NHS Improvement as well as the Care Quality Commission (who will also inspect all in-patient services) other provisions may fall under the CQC, or - if delivered in a school - Ofsted, or, in the case of talking therapies provided in non-NHS settings, such providers may not be inspected at all. The Children's Commissioner notes that "the complexity is compounded by a lack of information and transparency".

The Children's Commissioner's briefing note was swiftly followed by the Government Green Paper Transforming Children and Young People's Mental Health Provision: a Green Paper in December 2017. Following X's case and the associated media coverage, it does appear that the issue of the clearly inadequate status of children's mental health provision is being subjected to scrutiny, however there is still uncertainty in terms of the extent to which any proposed reform will result in significant changes to the state of the current system.

Legislative Provisions: the need for reform
Section 25 of the Children Act 1989 has been in existence for almost 30 years. It was drafted at a time where the approach to children displaying complex behavioural issues was very different from the approach adopted today. The term 'secure accommodation' itself has a punitive connotation, whereas the use of restrictive placements for children in a welfare context today is (quite properly) aimed more towards intervention and support than perhaps it had been in the years gone by.

We have thankfully reached a stage where the onus is becoming increasingly focussed upon addressing the underlying problems experienced by children who display harmful, destructive behaviours to both themselves and to others, rather than simply containing those behaviours by 'locking them up' (I make no excuse for using those words), hence the increasing use of what are often referred to as 'therapeutic' placements (a term which is more than slightly Delphic in nature).

The fact is that the regular use of the inherent jurisdiction points towards a lacuna in the current statutory provisions; section 25 is often unavailable as an option either due to lack of available secure placements, or simply due to a secure children's home being inappropriate for an individual child who requires focussed therapeutic intervention rather than mere 'containment'. Put in very stark terms, section 25 is, in some respects, ineffective because it is incapable of being utilised by local authorities in the way Parliament intended as there are insufficient resources to meet the current demand for placements. This has been the case for a number of years now. The time has surely come where consideration must be afforded to a formal statutory and regulatory scheme designed to allow for the lawful deprivation of liberty of children within placements which do not constitute secure accommodation or 'accommodation designed for restricting liberty', whilst the entirety of section 25 itself may be due a wholescale review 7.

The children who occupy placements, be it in secure accommodation, bespoke placements where a deprivation of their liberty has been authorised under the inherent jurisdiction, or Tier 4 provision, are undoubtedly the most vulnerable within our society. The need for urgent attention to be given to both resources and the current state of the statutory provisions has perhaps never been so stark as it is today.



1 As per Wall J in the seminal case of Re C (Detention: Medical Treatment) (FD) (1997) 2 FLR at 198

2 See Re C (ibid) and Re X & Y (2016) EWHC 2271 (Fam).
3 For example, in cases where the primary purpose of the intended placement is to provide therapeutic intervention or treatment, with the restrictive care arrangements being incidental to this.
5 Occupancy at March 2018 was at 80%.
6 The lack of available places in secure accommodation has been raised on a number of occasions by Courts over recent months- by way of example see A Child (no approved secure accommodation available; deprivation of liberty) [2017] EWHC 2458 (Fam) and F (A Minor: secure accommodation resources) [2017] EWHC 2189 (Fam).
7 Further issues in relation to the current status of the law and the associated problems within the context of s.25 and deprivation of liberty under the inherent jurisdiction are discussed in detail within an excellent article Daedalus, Ariadne and the Minotaur: Where are we now? by Alex Laing published by Family Law Week here;