Life, Liberty and the Pursuit of Happiness: Deprivation of Liberty Orders under the Spotlight

On Tuesday 28 May 2024, BBC Radio 4 aired a File on 4 programme Detained and Restrained: Britain’s Vulnerable Kids, a commentary on the use of Deprivation of Liberty Orders in the courts of England and Wales. The inappropriate use of these orders due to the lack of secure accommodation units for some of our most vulnerable young people has hit the mainstream news. However, it was the children speaking of their perception of the system designed to keep them safe, yet a system that is facing an unprecedented crisis of supply and demand, that was so striking.

Presented by BBC journalist Ashley-John Baptiste (a former looked after child himself), the tales of these young people were harrowing to hear. Children on the cusp of criminality, exploited and groomed, involved in gang culture, preyed upon by drug dealers and sexual predators. These three former looked after children, while acknowledging the risk surrounding their childhoods, described how they kicked against orders that were so draconian they considered them degrading. They lambasted a system they perceived as damaging to their physical and mental health. To them, the orders appeared to do far more harm than good. One young person described her order as a power struggle between herself and staff members who “didn’t care” about her. It was such a far cry from my working experience of professionals who really do care, it was galling to hear so bluntly that for some people we may be hindering, not helping.

I say “some people” deliberately, as just as each child is unique, so are their experiences. The reporter spoke to professionals who do advocate for these orders- in the right circumstances. A crucial caveat. I have represented children and local authorities in cases where a DoL Order has created structure and routine, and given much needed boundaries to a young person. With greater stability comes improved behaviour and greater professional confidence, therefore fewer restrictions. Some have been able to return to education and a semblance of a normal childhood. Yet, just because it works for them, does not mean it is appropriate in each case. It is no secret that often a Deprivation of Liberty Order for a child in a residential setting is the only resource available to local authorities to keep a child safe. In turn, the court is left in an invidious position of placing a child in an inappropriate setting using the inherent jurisdiction due to the lack of secure accommodation placements under s.25 Children Act 1989, and too few children’s homes with appropriate therapeutic provision. That is the real villain of the piece.

The President of the Family Division, Sir Andrew MacFarlane, also featured in the programme to talk about “the number one thing that he is most worried about”. He repeated his concern about the “few options” presented to the court for children who have had a “disastrous childhood” and who are engaging in self destructive, harmful behaviours, putting themselves and others at much more of a risk than if the court did not make the order. In 2022, he created the National Deprivation of Liberty Court (now the National DoL List) with the intention of returning the oversight of this “important, sensitive work”, to the High Court, with better transparency and monitoring of the orders being made. In Re X (Secure Accommodation: Lack of Provision) [2023] EWHC 129 (Fam) at [1], he sought to “draw public attention to the very substantial deficit that exists nationally in the provision of facilities for the secure accommodation of children”. His predecessor, Sir James Munby, foreshadowed this when he delivered his scathing judgment in Re X (A Child) (No 3) [2017] EWHC 2036 (Fam) at [37]: “What this case demonstrates, as if further demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with.”

Four years later, Lady Black gave her leading judgment in Re T (A Child) [2021] UKSC 35 and expressed her “profound anxiety” about these cases. She set out a depressing history of judicial decisions lamenting the lack of secure accommodation and appropriate support for vulnerable young people. In answer to the Children’s Commissioner's invitation to consider what would happen without the inherent jurisdiction, she said at paragraph 141 “…it seems to me, that it is unthinkable that the High Court, with its long-established role in protecting children, should have no means to keep these unfortunate children (and others who may be at risk from them) safe from extreme harm, in some cases death. If the local authority cannot apply for an order under section 25 because there is no section 25 compliant secure accommodation available, I would accept that the inherent jurisdiction can, and will have to be, used to fill that gap…”.

In particular, she highlighted the decision of MacDonald J in Lancashire County Council v G and N [2020] EWHC 2828 (Fam) at [59] where he said: “It is plain that, despite the issue being highlighted in multiple court decisions since 2017, and by the Children’s Commissioner, the shortage of clinical provision for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive clinical environment, the shortage of secure placements and the shortage of regulated placements remains. In this context, children like G with highly complex needs and behaviour continue to fall through the gaps that exist between secure accommodation, regulated accommodation and detention under the mental health legislation.”

Clearly the judiciary’s cries have fallen on deaf ears for years. Despite this “well-known scandal” and professionally acknowledged national crisis, the Nuffield Family Justice Observatory describes children subject to Deprivation of Liberty Orders as “largely invisible in national administrative data”^[1]. So, what do we know about the experience of the 1,368 children in England and Wales who were the subject of an application for a DoL Order in 2023^[2]?

The findings of the 2022 Independent Review of Children’s Social Care by Josh MacAlister^[3] were blunt^[4]:

There are too few suitable homes, or staff with the multidisciplinary skills, to meet the needs of children who may be a danger to themselves or others, or who are being exploited… Applications for use of these orders has risen by 462% in the last three years alone, and the harrowing circumstances set out in these High Court judgments are a window into the dysfunction of the care system…

There is a lack of flexibility in existing care standards and regulations allowing for the creation of bespoke packages of care. In the judgement made by Justice MacDonald in the case of Wigan Metropolitan Borough Council v Y^[5], child “Y” was detained in a hospital ward despite presenting with no mental health needs, as the local authority was unable to find a home across the country that would take him. This case is one of many that highlights the impact an absence of suitable homes with the ability to care for children with the most complex needs can have on children. Alongside reforms to the way homes are commissioned and run, new care standards should help address such issues, by allowing for better quality, more flexible and innovative types of provision which can provide care for these children.

At page 150, the report criticises the “Jenga tower” of complicated rules and legislation that constrain the tailored approach to children’s social care that is required. The report calls for fresh standards, setting a high bar for the quality of care, with flexibility to meet the varied and complex needs of children.

And what of those complex needs? In March 2024, the Children’s Commissioner, Rachel De Souza, released a report: Children’s Mental Heath Services 2022-2023^[6]. The report found that “there were 949,200 children and young people who had active referrals to Children and Young People’s Mental Health Services (CYPMHS) at any point within the 2022-23 financial year. This is 8% of the 11.9 million children in England.^[7]” For those who could access treatment: “In 2022-23, there were 6,300 children and young people who waited over 2 years (104 weeks) before entering treatment, for whom the average wait was over three years…^[8]”

Supply for first tier mental health support services far outstrips demand. Those numbers are hard to hear and even harder to ignore. The waiting list for CAMHS is prohibitive, with intervention coming far too late for many young people in the grip of poor mental health as a result of adverse childhood experiences. It is common place now that we are told therapeutic support is not available until the young person presents as more stable. In which case, who and what is left to provide that scaffolding to create stability, but an often unregistered residential placement and a Deprivation of Liberty Order. The last weapon in the arsenal for a young person in crisis.

The Children’s Commissioner’s view is that “We need fresh, long-term thinking when it comes to children’s mental and emotional health and wellbeing. Much of this work must be done upstream, creating an environment and a world – both online and offline – where children grow up feeling happy, safe and supported. This means every child feels loved and nurtured, lives free from poverty, and is able to focus on learning. With enough focus on prevention, children should never come close to crisis.”^[9]

That must surely be the end goal for all of us who work in child protection. It just feels a long way off. Yet, in a blog article dated 20 December 2023, it was announced the government has established a new Task and Finish Group, co-chaired by the Department for Education and NHS England. “It aims to improve the outcomes of children and young people who are in complex situations with multiple needs and who are currently, or at risk of, being deprived of their liberty”^[10] starting with the recommendations from the Nuffield Family Justice Observatory. In its September 2023 paper^[11], having tracked the data from the National DoL List over a 12 month pilot, the NFJO made 10 key points about children under Deprivation of Liberty Orders^[12]:

About the children:

…Without the right action, the number of children in this situation will continue to increase.
The children have multiple and complex needs… which they are not receiving adequate support for.
Their behaviours are often associated with experiences of early and ongoing childhood adversity… and complex trauma.
Children deprived of their liberty have little agency over what happens to them.
While it is often intended as a temporary measure, many children will continue to have their liberty deprived for many months while living in what are often unsuitable – and illegal - placements far from home and their communities.

About their care:

Children deprived of their liberty are not unknown to the system and their needs do not appear overnight. Social care, health, education and other systems are failing to respond to their needs- not just at points of crisis but earlier stages in their lives and throughout adolescence.
It is not the fault of any one agency or service - but children and their families are being pushed around different systems that have different ways of working, different criteria for accessing support and different legal frameworks.
This is a national issue, with local authorities up and down the country using DoL applications to keep children safe…
There is no simple solution- but we must start with what we know about children’s needs and circumstances, and identify what kind of care they need to meet their needs, keep them safe, and support them to flourish. There are areas in the country that are starting to do this and there is budding good practice that can be built upon.
Changes to ways of working with and for children, and to the type and availability of services and provision, will be needed to better meet the needs of children subject to DoL Orders.

The research confirmed that significant change is needed to the system, and the availability and provision of services. In order to drive that change the NJFO developed five principles of care, the basics of what a child deprived of their liberty requires^[13]:

Stable, trusted, valued relationships.
Holistic assessment, formulation and a tailored plan of intervention and support.
Long-term support that is tailored to their needs.
Highly experienced, multidisciplinary teams.
Agency and respect.

Those findings and recommendations are not groundbreaking, they are part of the well-known national scandal acknowledged in court rooms up and down the jurisdiction. But they are essential and they will be hard to implement for wholesale multi-discipline change will take time, and despite the “DfE investing in children’s home provision, backed by £259 million of capital funding”^[14], it is clear that the much needed funding and package of reform is not yet reaching where it is needed most.

In March 2024, Nagalro (The Professional Association for Children's Guardians, Family Court Advisers and Independent Social Workers) wrote an open letter to the government entitled The End of Deprivation of Liberty Orders for Children Not in Therapeutic Care, where they pleaded “The reality of the situation is that we are experiencing a mental health crisis among our children and young people. The solution should be a health and medical-based one. Instead, social workers and judges are left to do whatever they can because there are insufficient mental health resources to meet the need. Despite rising demand, the number of inpatient child mental health beds has fallen by a fifth since 2017. Many of the children held under a DoL order would formerly have been placed in a secure children’s home. Since 2002, 16 secure children’s homes have closed and those who remain are more likely to accept the children with the lowest, rather than the highest, levels of need, creating a bizarre ‘reverse auction’ for scarce beds.^[15]”

It was perhaps naive to expect that in the 6 months between September 2023 and March 2024 real change might be felt at the front line as a result of the NFJO recommendations and some government action, particularly when considering the history. From the judiciary using their platform to highlight the crisis, the High Court DoL List was born. That, in conjunction with the NFJO, created the missing data. The Children’s Commissioner and Independent Reviewing bodies have added some much needed volume to the cries for help which have been echoed by the front line professionals. It has taken years for this to come into the mainstream proper.

So, when listening to the radio one random Tuesday evening, I realised that the power actually lies in the voices of the young people themselves. Their stories penetrated through the judgments, the reports and the data, to make it real in a way the adults around them have not been able to achieve: They did not feel physically or psychologically safe as looked after children.

And so, the words of Munby P in Re X echo down the ages: [37] “We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.”

That these issues still exist in 2024, means we must do better for our children and young people. We must learn from the data and implement the recommendations, but more importantly, we must reflect on the experiences of the young people themselves and listen to what they have to say. Hopefully, thanks to their bravery, and for all the children who are to come, there is real change on the horizon.

You can listen to the programme here: https://www.bbc.co.uk/sounds/play/m001zdqk

^[1] https://www.nuffieldfjo.org.uk/resource/children-subject-to-deprivation-of-liberty-orders

^[2] https://www.nuffieldfjo.org.uk/news/data-released-by-the-ministry-of-justice-shows-over-1300-children-subject-to-dol-applications-in-2023

^[3]https://assets.publishing.service.gov.uk/media/640a17f28fa8f5560820da4b/Independent_review_of_children_s_social_care_-_Final_report.pdf

^[4]ibid page 155

^[5] Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 (Fam)

^[6] https://www.childrenscommissioner.gov.uk/resource/childrens-mental-health-services-2022-23/

^[7] Ibid page 6

^[8] Ibid page 7

^[9] Ibid page 4

^[10] https://adcs.org.uk/blog/article/cross-sector-working-to-improve-support-for-children-in-complex-situations

^[11] https://www.nuffieldfjo.org.uk/wp-content/uploads/2023/09/CHILDR1.1.pdf

^[12] Ibid page 4

^[13] Ibid page 5

^[14] ADCS (n10)

^[15] https://www.nagalro.com/news_resources/146/nagalro_open_letter_to_government_urges_the_end_of_deprivation_of_liberty_orders_for_children_not_in_therapeutic_care/