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Nottinghamshire County Council v LH (A child (No. 1) [2021] EWHC 2584 (Fam)

A judgment in which the Court refuses to make a deprivation of liberty order, where the local authority is unable to identify a suitable therapeutic placement for the child, and continued detention at the psychiatric unit was found harmful to a child who did not suffer from a psychiatric condition.

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This case highlights the national shortage of suitable accommodation for vulnerable children.

Introduction:

The Local authority applied for an interim care order in respect of a 12 year old girl LT who had been subjected to her mothers poor mental health, domestic abuse, physical assault and alcohol abuse within the family home.  LT had been diagnosed with ASD, and ADHD, and her behaviours escalated becoming more aggressive, violent and challenging to manage. LT's mother made repeated requests for LT to be accommodated as LT was beyond her control. Matters escalated further and LT was taken to a place of safety pursuant to s.136 MHA 1983 and later admitted to a unit for acute adolescent psychiatric admissions where she remained. The Court at the first hearing made an interim care order and gave permission for the inherent jurisdiction to be invoked authorising LT's deprivation of liberty on a very short term basis, fixing a further hearing to consider LT's interim placement.

The conclusion of LT's psychiatric assessment (by treating clinicians) was that LT was not considered suitable for detention under the MHA 1983, on the grounds that she was not suffering from a mental illness of a nature or degree which made it appropriate for her to receive treatment within a hospital setting. She did not have a psychiatric condition, her degree of distress was assessed to be due to her social circumstances.  LT's need was for a therapeutic placement. Further, detaining LT in an acute psychiatric unit was detrimental to her welfare which would not only adversely affect LT psychologically but would be likely to result in long term negative impact on her behaviour. Every hour she spent on the unit said the clinicians was  harmful to her. LT was also having a negative effect on other young vulnerable persons on the ward.

The local authority conducted a nationwide search for a therapeutic placement, none was available.  At the return date the local authority invited the Court to continue LT's deprivation of liberty at the same acute psychiatric unit, it having nowhere else to place her:

"The sole reason why the Local Authority invites the court to find that it is in LT's best interests to be deprived of her liberty whilst accommodated in the acute psychiatric admissions unit is that there is nowhere else for her to go - nowhere in the whole of the country - such is the national shortage of accommodation suitable for vulnerable children such as LT. The local authority are not able to provide any information to the court to give cause to believe that accommodation would be identified as available for her were I to adjourn the case for another few days."

The Law:

The court adopted the analysis set out in Wigan MBC v W, N and Y [2021] EWHC 1982 (Fam), Lancashire County Council v G v N [2020] EWHC 2828, Re T [2021] UKSC 35, and Tameside MBC v AM and others [2021]EWHC 2472.

Decision:

Refusing the Local Authority's application to authorise LT's deprivation of liberty on the following grounds:

(i) In many cases the High Court does exercise the inherent jurisdiction to authorise the deprivation of a child's liberty in unregistered placements, which the courts are ill-suited to monitoring, on the grounds that there is no other available solution. In the present case,  the proposed continued accommodation of LT in a psychiatric unit  could not possibly be described as a means of properly safeguarding her. It would not keep her safe or protect her.

(ii) If the inherent jurisdiction is a means of meeting the need as a matter of public policy for children to be properly safeguarded then,  it is also appropriate to take into account the adverse impact of continued authorisation on the other vulnerable children and young people on the unit.

(iii) Whilst deeply uncomfortable to refuse authorisation and to contemplate future uncertainties, LT is a looked after child and the local authority must find her an alternative placement - it has a statutory duty to provide accommodation for her, and  the state has obligations under Arts 2, 3 and 8 of the European Convention on Human Rights (see Sir James Munby in Re X (No. 3) (A child) [2017] EWHC 2036.)  

(iv) There is no doubt that the local authority has striven to find alternative accommodation but the national shortage of resources has led to the current position. Nevertheless, authorisation of the deprivation of LT's liberty in a psychiatric unit which is harmful to her and contrary to her best interests would only serve to protect the local authority from acting unlawfully, it would not protect this highly vulnerable child.

The Court further directed that a copy of the judgment  be provided to the Children's Commissioner for England; to the Secretary of State for Education; to the Minister for Children; to the Chief Social Worker; and to Ofsted.

Case summary by Judi Evans, Barrister, St John's Chambers

For full case, please see BAILII