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Re W (Young Person: Unavailability of Suitable Placement) [2021] EWHC 2345 (Fam)

In this case Knowles J was taking a decision about W. W is 15 and lives with her mother and brother.

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From June 2021 W began to exhibit extreme distress.  On occasions she absconded from home or school, and self-harmed.  She was taken to hospital on several occasions, but mental health assessments indicated she did not require admission to a psychiatric unit or detention under the Mental Health Act.  W's mother felt unable to meet her needs, and it was therefore planned that W would remain in hospital (in a private side room) whilst the LA sourced an appropriate alternative placement.  Whilst in hospital W continued to try and self-harm, to the extent she had to be restrained and/or sedated on occasions.  As a result the hospital trust applied under the inherent jurisdiction for permission to detain W and deprive her of her liberty.  Orders were granted on 30 July 2021, and the matter re-listed for 5 August.

On 5 August the LA's plan was that W would be placed with her mother and provided with 2:1 support from care/nursing agency staff.  W's mother indicated she was not sure that level of support would be sufficient, as at times 3 or 4 members of hospital staff had been required.  The LA indicated that the legal framework would be s17 of the Children Act 1989 coupled with orders under the inherent jurisdiction.  Knowles J indicated concerns about that legal framework and refused to sanction the plan.  The case was re-listed for 12 August.

On 12 August the LA proposed a similar package, but under s20, on the basis that this would not require the accommodation in question to be registered as a children's home with Ofsted.  M indicated that she felt W was beyond parental control and that the LA needed to share PR.  The Guardian agreed.  The care agency indicated that (due to their CQC registration) they did not believe they needed to be registered with Ofsted, regardless of mother's presence.  The matter was adjourned for a further 48 hours to allow the LA to consider its position in relation to sharing PR.

At the hearing on 18 August the LA proposed an individual placement (private rental) with 6 core workers provided by a care agency.  The LA and medical team agreed that a secure accommodation unit would be detrimental to W's needs at this time.  The LA proposed to share PR.  They sought authorisation to restrict W's liberty, including the use of restraint, the administration of medication, supervision both in and out of placement and restricted access to phones.  The LA had sought clarification from the CQC and Ofsted as to whether the placement would have to be registered.

Legal framework

Once an ICO is made, W becomes a looked after child (LAC) and CA 1989 s22 applies.  Pursuant to s22C(6)(d), if various other options (family member, LA foster carer, children's home, etc.) are not available, a child may be placed "in accordance with other arrangements which comply with any regulations made for the purposes of this section".

Pursuant to CA 1989 s105, a children's home is defined in accordance with s1 of the Care Standards Act: an establishment providing care and accommodation wholly or mainly for children.  Excluded from that definition are family homes, foster placements, hospitals, residential family centres and [most] schools.  Children's homes must be registered with Ofsted.  As Lady Black made plain in Re T [2021] UKSC 35, a children's home is regulated regardless of registration, although legally they are required to be registered.

A future issue (although not far off at all) is the prospective changes to the Care Planning, Placement and Case Review Regulations (in force 9 September).  The new regulation 27A will only permit placement under CA 1989 s22C(6)(d) in following:

i) A care home
ii) In hospital
iii) A residential family centre
iv) A school
v) A holiday scheme for disabled children

Decision

Knowles J noted that on 12 August the issue was whether the CQC registration was sufficient, or whether Ofsted registration was required.  The guidance document ("Children's homes and health care: registration with Ofsted or CQC") makes it plain that CQC registration and Ofsted registration are not mutually exclusive.  She concluded (para 29) that it appears "highly unlikely" that the care agency would be exempt from Ofsted registration, as they would be providing a home in which W would live and be cared for.

At this hearing, no party opposed an ICO, and no party opposed deprivation of liberty.  As Knowles J noted, there is no alternative: there is no secure bed, and in any event secure accommodation is not in W's best interests.

The matter has been re-listed in 'mid-September' (presumably before 9 September) to consider W's future placement.  At that hearing one suspects the court may have to grapple with the implications of regulation 27A in a potential 'bespoke placement' case, and in particular whether the inherent jurisdiction can still be used to 'plug the gap'.

Case summary by Julia Belyavin, Barrister, St John's Chambers

For full case, please see BAILII