In this issue, we share an October 2022 judgment in which the inherent jurisdiction of the High Court was used to authorise the deprivation of liberty of a 13 year-old child for the eighth time, after continued deprivation of her liberty in a hospital due to a lack of suitable, secure accommodation. The judgment contains important remarks about the potential harms to children who are effectively living in hospital settings. It will also be of relevance and interest to those wishing to deepen their knowledge on deprivation of liberty, including the use of restraint.
High Court authorises for the eighth time deprivation of liberty of a 13 year-old girl “left to live within a hospital”
The child at the centre of this judgment, referred to as J, is a 13 year-old girl with complex needs. J has autism spectrum disorder and attention deficit hyperactivity disorder; she has problems with attachment; and she experiences difficulties with hyperactivity, impulsivity and inattention. At times, J’s difficulties escalate, leading to aggressive behaviour towards herself and others. Due to J’s increasing needs, she was made the subject of an interim care order in July 2022 after her mother became unable to care for J, and keep her and her younger siblings safe in the family home.
Between May and October 2022, J was repeatedly admitted to hospital due to self-harm, suicidal thoughts, threats on her life and aggressive behaviour. At one point, J was detained under section 136 of the Mental Health Act. On several occasions, J ran away from hospital. While in hospital as an in-patient, J was assaulted by a member of agency security staff who “hit her around the back of the head”.
J has been assessed as not being Gillick competent to make decisions about her treatment and care.
Prior to the October 2022 court hearing, the courts had authorised deprivation of J’s liberty in a hospital setting on seven separate occasions.
The use of hospitals as accommodation for children with complex needs
Despite not having physical or mental health needs requiring in-patient treatment, J has been effectively living in hospital for more than three months due to the local authority’s inability to find suitable accommodation for her.
J had made clear that she did not want to live in hospital and the High Court described the hospital environment as “not at all suitable for her needs”.
In July 2022, a consultant child and adolescent psychiatrist at the hospital where J was living said:
“J remains on the … ward which is not a suitable environment for a child with complex developmental and attachment needs. She requires an environment that is calm and predictable where she can develop healthy and trusting relationships with adults who are attuned to her needs. Frequent staff changes are not conducive to develop trusting relationships. The hospital environment is not conducive to the therapeutic environment J urgently needs.” (para 5 of the judgment)
Whereas regulation 27A of the Care Planning, Placement and Case Review (England) Regulations 2010, as amended in 2021 (see here for the most up to date version of section 27A), allows local authorities (as corporate parents for children in care) to place a child in a hospital, authorisation of the deprivation of liberty placement of a child in hospital can only be granted by the court if the court is satisfied that it is necessary, proportionate and in the child’s best interests.
Restrictions amounting to deprivation of liberty
By virtue of:
a) J experiencing “continual confinement” and
b) J’s lack of consent / her inability to consent to the restrictions and
c) the involvement of state (i.e., the hospital and the local authority as public bodies) in the application and enforcement of the restrictions,
the restrictions imposed on J amount to deprivation of liberty.
The three conditions (a-c above) come from a leading case from the European Court of Human Rights – Storck v. Germany – 61603/00  ECHR 406 (16 June 2005). It concerned an 18 year-old who had been confined in a mental health hospital at her father’s instruction. The case established that there are three elements of deprivation of liberty for the purposes of article 5 of the European Court of Human Rights (right to liberty and security):
a) a person is confined to a particular place for a period of time which is not negligible (this is called the objective element);
b) a person has not given their consent to this confinement (this is called the subjective element); and
c) the confinement is due to the actions or inaction of the state (inaction includes failure to protect the individual from the confinement by not having mechanisms in place to supervise their deprivation of liberty).
To be lawful, authorisation of the deprivation of a child’s (or adult’s) liberty must be:
– proportionate and
– in the person’s best interests.
The High Court’s decision
The High Court was asked to authorise J’s move to new accommodation using its inherent jurisdiction.
Section 100(4) of the Children act 1989 provides that the High Court may make an order in respect of an individual child where there is no other statutory order available and there is reasonable cause to believe that the child is likely to suffer significant harm without such an order being made. Inherent jurisdiction orders are invariably made when there is no secure accommodation available for a looked after child (and therefore section 25 of the Children Act cannot assist) or where other arrangements (i.e. not under section 25) would be more suitable for the child.
To learn more about the inherent jurisdiction of the High Court, including important recent case law, please visit the August 2021 issue of our children’s rights legal digest.
In light of J’s vulnerability and her complex needs, the High Court concluded it would be impossible for her to return home to her family, and nor would be it be safe for J to live with a foster carer. All of the children’s homes approached by the local authority looking after J had refused to care for her. While, in J’s case, the criteria for a secure accommodation order under section 25 of the Children Act 1989 would be met (although the local authority did not consider secure accommodation to be suitable for J), in early October 62 children were in need of secure accommodation and only one place was available for a girl.
The local authority had, however, identified “a private landlord who [would] provide a property” where J could receive a bespoke package of care and support with two staff accompanying J all times (the court was informed J’s move to the “bespoke (unregistered with Ofsted) placement” would be delayed because “the core staff would need to undergo restraint training”). In the meantime, J would remain in hospital to avoid additional disruption to her routine and a detailed plan for J’s move would be implemented (i.e., J would remain at her current school where she is happy and settled; support would be provided from the Child and Adolescent Mental Health Service; J would be introduced to the new care team before her move; J’s mother would remain involved).
J’s mother, her (Cafcass) guardian and the NHS Trust were all supportive of this plan.
To learn more about the role of the guardian in public law proceedings (such as care proceedings, including those involving deprivation of a child’s liberty), visit the Children and Family Court Advisory and Support Service (Cafcass) website.
For the remainder of J’s time in hospital, existing restrictions would remain in place (these included no access to her mobile phone or social media, not being free to leave the hospital other than for school, being supervised at all times and having to follow a curfew withing hospital grounds).
During the court proceedings, J did not meet with or speak with the High Court judge but “her own, clear views” about her restrictions were shared by her guardian. J shared she would like to go for walks as and when possible, get her own food from local shops at mealtimes, have her curfew extended from 8pm to 10pm, and go to a gym.
The High Court authorised a new set of restrictions on J’s liberty, making important observations about their impact on J’s rights:
“No restrictions [at the future placement] are proposed to prevent J being able to come and go from the property subject to the restrictions set out above. No curfew is proposed. Nevertheless, the proposed care regime will mean that J will be under constant supervision and control and she will be subject to restrictions which other children of her age would not be subjected to. J would be unable to engage in day-to-day activities and enjoy family life without a level of support and supervision.” (para 29 of the judgment)
The High Court’s directions relating to the use of force and restraint
As part of the order, the High Court authorised the use of physical restraint but only if J presents a risk to herself or others and after de-escalation approaches have been tried and failed.
The High Court additionally directed the local authority, the health trust and the care agency providing care at the hospital “to use the minimum degree of force or restraint required” and stipulated that physical restraint must only be used by trained staff and that all applied measures must be:
x) the least restrictive of the child’s rights and freedoms;
xi) proportionate to the anticipated harm;
xii) the least required to ensure the child’s safety and that of others, and;
xiii) respectful of the child’s dignity.
The use of unregistered children’s homes
The accommodation J was authorised to move to is unregistered and the High Court was informed by the provider that it would not apply for registration because it “offers agency care not the operation of children’s homes” (see para 32 of the judgment).
Advocates should be aware of Practice Guidance issued by the President of the High Court’s Family Division which relates to the use of unregistered children’s homes. Where the court issues a deprivation of liberty order in respect of a child who is living, or will live, in an unregistered children’s home, there is the expectation that the provider of the home will register the establishment with Ofsted, and that the court will monitor this to make sure registration occurs. An addendum to the Practice Guidance requires local authorities to immediately notify Ofsted when the court has authorised the deprivation of liberty of a child in a children’s home which is currently unregistered.
You can read the full judgment here:  EWHC 2687 (Fam)