Legal Update by Chloe Branton.
Mr Justice MacDonald authorised the deprivation of liberty of a vulnerable 16-year-old girl, G, under the inherent jurisdiction. The court was left with no real choice but to authorise the deprivation in circumstances where the only placement that could be located was neither secure nor regulated. Mr Justice MacDonald was troubled with the situation, and questioned whether he was simply being forced by mere circumstance to make an order irrespective of welfare considerations rather than exercising the courts’ welfare jurisdiction.
Background and applications
The background is troubling and yet unsurprising to those who work in this area. G, 16, had been in the care of the local authority (“the LA”) under a care order since 20 April 2010. G had been placed in foster care with her siblings, as per the LA’s approved final care plan, and had remained with her foster carers from age 4 to 16. Due to G’s suicidal tendencies and self-harming behaviours, she had had some twenty in-patient admissions between January 2020 and the hearing in late October 2020. G reports hearing voices, has a diagnosis of PTSD, and continued to demonstrate high risk behaviours. At the time of the hearing G was waiting to be discharged from an adult psychiatric ward.
G had been detained under section 2 of the Mental Health Act for 28 days under assessment since 8 May 2020. When she was discharged, G was placed in a residential placement but was aggressive and violent. The Mental Health Team attended and tried to assess G, G having written 9 letters stating she wanted to kill herself as at 17 August 2020. G refused to engage, and after the team left G assaulted staff, damaged property again and left the placement threatening to commit suicide. The assessment of the team had concluded that G did not meet the criteria for a Tier 4 bed and also that the previous 2 admissions had been unproductive for G.
On 24 August 2020, G had arrived at the placement and collapsed- a ligature was around her neck which had to be cut off by staff. An ambulance was called, and G was taken to hospital where she was deemed mentally and medically able to return to the placement. The next evening G tied a long sock around her neck which had to again be cut off. On 28 August, the LA applied for an order under the inherent jurisdiction authorising the deprivation of G’s liberty. The authorisation was granted by HHJ Bancroft that same day. G then moved to a specialist mental health in-patient home, X, on 24 September, due to her escalating behaviours.
Unfortunately, G continued to display these behaviours at X, including swallowing objects, cutting herself, and more self-strangulation. The court was not informed of this move either, resulting in a period of time were no order was in place to authorise the deprivation of G’s liberty at X. On 6 October 2020 X gave immediate notice on the placement after G stole a lighter from another young person and set fire to her mattress. The fire resulted in the evacuation of all in the placement, but G returned to the building to set fire to the curtains. G was arrested for arson and following her release from police custody the next day she was placed at Y, a solo placement. G continued to damage property and assault staff, as well as police officers, at Y.
On 7 October 2020, the LA applied for a secure accommodation order pursuant to section 25 of the Children Act 1989. The matter came before HHJ Bancroft the next day. As of 8 October the LA had not been able to identify a secure placement for G. Consequently, the court granted a further deprivation of liberty order until 5 November, for G’s then placement at Y. Y was intended to be an interim placement only until a suitable longer- term placement could be identified.
After the hearing on 8 October 2020 G was detained again under section 2 Mental Health Act 1984 and admitted to an adult ward. Since then a search had been ongoing for a CAMHS psychiatric intensive care bed but none have been available. G had continued to exhibit the same extreme behaviours. The Guardian was able to visit G on 19 October. G repeatedly swore at the Guardian and made it clear she was “not bothered” about where she was placed. G had been assessed as not meeting the criteria for continued detention on a mental health ward. The multi-disciplinary team concluded G may be developing an emerging personality disorder and will need to receive support from appropriate mental health services, but considered that her presentation is driven by behaviour with no underlying diagnosable mental disorder meriting clinical treatment in hospital. The hospital had consequently planned on reviewing and discharging G on 19 October, but scheduled the meeting for 10:30am on 23 October instead. Based on the report the court had seen, the expectation was that G would be discharged.
The Hearing on 23 October 2020
As of the morning of the hearing (23 October 2020), the LA contended that G was in urgent need of a secure placement. However, no placement was available for G anywhere in the United Kingdom. Alternatively, the LA sought to place G in a regulated non-secure placement under the auspices of an order authorizing the deprivation of G’s liberty. The judgment notes that the LA had been: “conducting a diligent and comprehensive search for an appropriate secure placement for G across the United Kingdom to no avail… [the LA] has likewise diligently searched, as a contingency, for a regulated non-secure placement that could accommodate G under the auspices of an order authorising the deprivation of her liberty but has not been able to locate such a placement.” 
A few days earlier, the court had directed a statement from the Secure Welfare Coordination Unit (“SWCU”) operated by Hampshire County Council. Pursuant to the direction, a letter from Helen Gunniss, the Team Manager of SWCU was provided. Mr Justice MacDonald stated that the “letter appears designed to make clear to the court that SWCU has only the bare minimum of responsibilities, and certainly no responsibilities towards the children for whom secure placements are sought via the service it offers.” . Mr Justice MacDonald set out in the next few paragraphs the key points covered in the letter from Ms Gunniss, and the stated rationale of SWCU to cease providing the names and locations of the secure units available at any one time.
"Due to the bed capacity and impact of Covid-19 a decision was made by the SWCU in collaboration with the SCH Register Managers, the DfE and the SWCU's Board to amend the previous process of how beds were advertised. The beds are projected beds rather than declared beds to support planned moves and transitioning into the secure welfare estate. As part of this process change it was jointly agreed that it was not felt necessary that the SCH's were named moving forward. This amendment has not impacted the process in any way, with the referrals being sent to all potential SCH's for consideration as they previously would have." .
Despite the “reasonableness or otherwise of that decision not being before the court…[Mr Justice MacDonald felt] compelled to observe that Ms Gunniss’ rather blithe assertion that ‘This amendment has not impacted the process in any way’ may be true when looked at from the perspective of those adults who manage SWCU, but it is almost certainly not true from the perspective of the vulnerable children who require secure placements….[as] the location of a given placement is central to effective care planning for a child, as is the ability to liaise with a placement that might be available for that child.” 
Mr Justice MacDonald continued to criticise “the decision of SWCU not to provide details even of the geographical location of the few placements that may be available means (as will be apparent to anyone with even the most rudimentary understanding of effective care planning) that information central to child-centred care planning is unavailable to a local authority. This may well make things easier for SWCU. The same cannot be said for the vulnerable children that local authorities, and in some cases the court, are charged with protecting.” 
The LA submitted that the criteria pursuant to section 25(1)(b) of the Children Act 1989 were satisfied and its primary application was for a secure accommodation order. However, no beds were available, and so the LA advanced its application for an order to authorise the deprivation of G’s liberty in a non-secure placement. Further, due to a lack of resources the LA was effectively compelled to advance the unregulated and non-secure placement as being in G’s best interests.
The Children’s Guardian was concerned as to whether a secure children’s home was appropriate and able to meet G’s needs sufficiently but submitted that, the reality was that there was no other option available for keeping G safe. The Children’s Guardian was unable to give her consent to G being placed in a placement which was unregulated and non-secure under the auspices of an order depriving her liberty. She was however, acutely aware that the only option available for G at the time was that. (27-28).
The statutory regime regulating the use of secure accommodation in respect of children, along with the associated case law, is set out in detail from paragraphs 29- 48. The court within this context also considers articles 5 and 37 of the European Convention on Human Rights (“ECHR”). Helpful guidance is provided at paragraph 48 for the 10 steps to be taken when an application is made to the court for an order under the court’s inherent jurisdiction to authroise the deprivation of liberty of a child:
“i) The applicant should make the court explicitly aware of the registration status of those providing or seeking to provide the care and accommodation for the child.
ii) If those providing, carrying on and managing the service are not registered, this must be made clear to the court. The court should be made aware of the reasons why registration is not required or the reasons for the delay in seeking registration.
iii) The applicant must make the court aware of the steps it is taking (in the absence of the provision falling within Ofsted or CIW's scope of registration) to ensure that the premises and support being provided are safe and suitable for the child accommodated.
iv) Due to the vulnerability of the children likely to be subject to an order authorising a deprivation of their liberty, when a child is to be provided with care and accommodation in an unregistered children's home or unregistered care home service, the court will need to be satisfied that steps are being taken to apply for the necessary registration.
v) The court should also be informed by the local authority of the steps the local authority is taking in the meantime to assure itself that the premises, those working at the premises and the care being given are safe and suitable for the accommodated child.
vi) Where an application for registration has been submitted to Ofsted or CIW, the court should be made aware of the exact status of that application.
vii) If an order is granted and no application for registration has been made, then the court order should provide that the application for registration should be submitted to Ofsted or CIW within 7 working days from the date of the order.
viii) Once the court is satisfied that a complete application has been received by Ofsted or CIW, the court will review the situation regarding the registration status of those carrying on and managing the children's home or care home service in a further 12 weeks. Such review (which may be on paper) will be in addition to any review the court requires to ascertain whether the deprivation of liberty should continue.
ix) If the court has not received confirmation from the local authority within 10 working days of the initial order that a complete application for registration has been received by Ofsted or CIW, the court should list the matter for a further immediate hearing.
x) If registration is refused or the applications for registration are withdrawn, the local authority should advise the court of this as a matter of urgency. The court will take this into account when deciding whether the placement of the child in the unregistered children's home or unregistered care home service continues to be in the child's best interests.” 
Mr Justice MacDonald then goes on to discuss the very unfortunate and yet all too familiar circumstances the court and the parties were left with. Due to the lack of adequate provision for secure accommodation, couple with the lack of regulated provisions for children in the United Kingdom, the court had to consider the use of an unregulated placement supplemented by an order to deprive a child of their liberty. This is despite the fact that on the LA’s case that child met the statutory criteria for secure accommodation. He felt he could not escape the conclusion that the LA’s application for a secure accommodation order in itself had been forced upon them partly due to the wholly “inadequate provision” for children and adolescents in the jurisdiction who “do not meet the criteria for detention and treatment under the Mental Health Act 1983 but nonetheless require assessment and treatment for mental health issues within a restrictive clinical environment.” The LA counsel submitted that G is another child falling through the gaps between “secure accommodation, regulated accommodation and detention under the mental health legislation” due to her complex welfare needs. 
From paragraphs 50-61 Mr Justice MacDonald surveyed case law authorities from 2017 onwards highlighting how the courts are repeatedly seeing cases demonstrating the shortage of clinical provision of placements for children and adolescents like G.
At paragraph 62 he concludes that a decision had to be made that day for a vulnerable child at risk of possibly fatal harm. And yet he had no option before him but to grant relief to the LA under the court’s inherent jurisdiction. He was satisfied the placement in question was deprive G of her liberty under article 5 of the ECHR. The restrictions to be imposed upon G at the placement were then set out clearly. The court was thus satisfied that G was unable to consent to the deprivation of her liberty, would be subject to continuous superivison and control, and would not be free to leave the placement.
Mr Justice MacDonald sets out how, with deep reservations, he was satisfied that on balance it was in G’s best interests to authorise the deprivation of G’s liberty in the identified placement despite it being “sub-optimal from the perspective of meeting G's identified welfare needs and is an unregulated placement.”  He stated he was acutely aware that the Children’s Guardian was unable to support the placement. Ultimately, however, there was nowhere else for G to go upon discharge from the adult mental health ward and it was not in her best interests to be discharged into the community. 
The placement identified by the LA is an unregulated placement which has stated its intention not to seek registration, and therefore the President’s guidance, “Placements in unregistered children’s homes in England or unregistered care home’s in Wales” cannot be readily complied with. The placement had only just been identified shortly before the hearing and the fact that the court had been notified that the placement did not intend to seek registration meant the court could only authorise the placement for the shortest possible time before a review was undertaken. Caveats were also made in the judgment, including that it was an emergency placement and so could be sustained only for as long as it takes to identify a more permanent placement for G. Further updating information was also required from the LA with very tight timescales. The matter was also listed for an afternoon hearing on the Monday (26 October 2020), having been heard on Friday 23 October 2020, to urgently review the case.
Mr Justice MacDonald was satisfied that “court is left with no option but to make an order authorising the deprivation of G's liberty at the unregulated placement located by the local authority. In short, this is the only placement available and the priority must be to keep G safe. She has nowhere else to go. As I make clear however, I harbour grave reservations about this decision.” 
He was left asking himself “whether, where there is only one, sub-optimal option open to the court apart from allowing G back into the community where she may well end her own life, the court is really exercising its welfare jurisdiction if it chooses that one option, or if it is simply being forced by mere circumstance to make an order irrespective of welfare considerations. At best, the decision can be based on only the narrowest of such considerations, namely the bare need to prevent G from harming herself. Within this context, I echo the words of the former President in Re X (A Child)(No.3) as I am left acutely conscious of my powerlessness, of my inability to do more for G.” 
Following the criticism at Ms Gunniss of SWCU and the woeful lack of placements, it was directed at the penultimate paragraph of the judgment that it be sent forthwith to the Children’s Commissioner, various members of the Government, to Sir Alan Wood, Chair of the Residential Care Leadership Board, to Isabelle Trowler, the Chief Social Worker, to OFSTED and to SWCU.
  EWHC 2036 (Fam)