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Vulnerable ‘invisible children’ in England are being locked away without legal protection: Children’s Commissioner

Anne Longfield, Children's Commissioner for England, has published a report shining a light on those children who are living 'behind closed doors', including those locked up in secure hospitals, prisons or children's homes.

The report – Who are they, where are they? – shows that in the official figures there are 1,340 children 'locked up' in various institutions. On 31 March 2020 there were:

The report reveals for the first time the types of ward on which children are detained, with 237 children in secure mental health wards and psychiatric intensive care units.

The report shows that although children end up in different types of setting, they often have very similar and overlapping needs – nearly half the children in custody have been in care, and three-quarters have mental health needs. Half the children locked up for their own welfare have mental health needs, and 80 per cent have also been charged with a criminal offence.

The report also warns that children continue to be required to fit into different types of settings, run by different Government departments with different priorities, rather than have settings which can adapt to the needs of children. There is also a worrying disparity in which children end up in which types of setting – Black children (especially boys) are far more likely to be in youth custody, and if they do end up in mental health wards are more likely to have been sent there by a court. Girls are much more likely than boys to be in mental health wards – three-quarters of the children detained under the Mental Health Act are girls.

While there is some good news that the numbers of children in youth custody has fallen, the report reveals concerning evidence of a growing number of children who are locked up but who do not appear in any official statistics and who are not living in places designed to hold children securely. The report states that although these children are very vulnerable and can be at risk of being sexually or criminally exploited or harming themselves, often there is no space in a secure children's home for them to be kept safe. As a result, councils are having to come up with makeshift arrangements like flats or hostels or even caravans. The report shows how there are children who are being deprived of their liberty in settings which are inappropriate for their needs, and are not even registered with Ofsted.

The Children's Commissioner is concerned that these children appear to be at risk of significant harm because they are not living in accommodation that can hold them securely because none is available.

The Children's Commissioner shows that in 2019/20, 327 children in England were deprived of their liberty through the 'inherent jurisdiction' of the High Court. This is used by courts when no piece of legislation provides a way for a child to be deprived of their liberty, but a judge rules that it is necessary to keep them safe. The report also reveals number of children locked up through the 'inherent jurisdiction' has tripled since 2017/18.

The report explains how because the inherent jurisdiction is used when no other legislation can be used to deprive a child of liberty, there are no regulations and no government guidance that clearly sets out when and how the inherent jurisdiction should be used. As a result, the Children's Commissioner is concerned that children placed under the inherent jurisdiction of the court do not have access to the same legal safeguards as children placed under the Children Act. For example, a child is only entitled to an annual review rather than reviews at three months and then six-monthly, which is the requirement under the Children Act.

The Children's Commissioner is also concerned that without any data collected on where these children are living it is harder to ensure that they are in appropriate and safe conditions.

For this reason, the Children's Commissioner, with the support of Leigh Day, Victoria Butler-Cole QC, Alex Ruck Keene and Edward Bennett, recently intervened in a Supreme Court case about the use of the inherent jurisdiction in order to highlight her concerns about the legal protections in place for these children, and the appropriateness of their accommodation. The intervention is published alongside this report and the judgement is awaited.
The report also warns that those children where a court order is in place may just be the tip of the iceberg when it comes to children who are locked away but do not appear in official statistics.

The report also details how the Children's Commissioner's Office visited 13 children's homes, residential special schools and mental health wards and found significant concerns about children who appear to be deprived of their liberty illegally, without the appropriate legal safeguards in place.

For the report, click here.