Public Law
December 2021

Background: This case concerns a deeply troubled girl aged almost 14 and a half. She has been in the care of a local authority pursuant to a care order made in January 2014. Mr Justice Holman found that there is absolutely no doubt on the evidence in this case that the criteria under section 25 of the Children Act 1989 for making a secure accommodation order are satisfied. However, the local authority had been unable to identify suitable regulated premises where she can be accommodated pursuant to such an order. Instead, the local authority applied for a DOLS order “in a way that has, frankly, become far too frequent in recent years.”

Mr Justice Holman concluded that “The fact of the matter is that there is a grave, and now scandalous, shortage of suitable establishments in this country where very troubled children such as this child can be kept safe whilst respecting their dignity and, so far as possible, their liberties. However, it needs clearly to be understood by this local authority, and by all local authorities, that the court itself does not have any resources at all available to it, nor a cheque book. I cannot myself find or create any solution in this case; but I am, frankly, not prepared simply to rubber stamp what the local authority and the other parties all know to be an unlawful situation at the moment in the present case” [para 2].

The essential factual background is that this child was born in 2007. She was removed from her mother’s care in March 2013 and a full care order was made in January 2014. In February 2015 the child was placed with a foster family in the same county in which she had been living with her mother, and the county of the present applicant local authority. For about six years there appeared to have been a period of some stability but in March 2021 that foster placement broke down. Initially, their own adult daughter, who lived some distance away in another county, offered to try to care for the child but in June 2021 that foster carer also said that she simply felt unable to cope. In July 2021 the child was moved to a residential home within the applicants’ county. Here, she displayed considerable self-harming behaviour. In September 2021 she self-harmed again and was admitted to hospital. During that admission, the residential home in which she had been living gave notice that they would not have her back. She remained in hospital for some time until a second residential home was identified for her in south London. She moved there during September 2021. During her period in hospital the child had been assessed as being on the autistic spectrum and this particular residential home is experienced in caring for such children. In the period between 5 and 8 November 2021 she was admitted three times to hospital under forms of police restraint. The second residential home has now refused to have her back.

At approximately 9.00p.m. on 26 November 2021, Mr Justice Holman was contacted as the duty out of hours judge and asked to make a DOLS order declaring that it was lawful and in her best interests for the child to be deprived of her liberty at the hospital in which she was then being detained. Mr Justice Holman had very grave misgivings about doing so, but as it was 9.00p.m. on a Friday night and all parties agreed to such an order being made, he did make it, but expressly ordered that it would cease to be of any effect after 6.00pm on Wednesday 1 December 2021 (the date of this judgment).

The position of the parties: The local authority asked Mr Justice Holman to renew or extend the existing DOLS order for a further period of 14 days to give to the local authority some further time to make some alternative and more lawful arrangements for this child [para 31]. The local authority had set out in a statement that “The placement team confirm that searches for accommodation began on 22 November 2021. To date, several hundred placements have been explored and no offers have been received” [para 17 & 18].

The overall position of the hospital unit was that: “The child has been held in this acute hospital for eleven days now despite being medically fit for discharge, which she has been since shortly after admission on 18 November 2021. It is not in her best interests, and the severe restrictions on her life are resulting in increased acts of absconding and aggression, the incidents of restraint, both physical and sedative, and now frequent, which is damaging for her and her future” [para 28].

Mr Justice Holman’s reasoning for declining to renew such an order on the facts and in the circumstances of this case are set out as follows: -

• “This child has now already been in that hospital for eleven days. The local authority have been well aware for many, many weeks now that they have a very troubled child on their hands who is going to need a very high level of care and supervision… I was told in the most vague and general of terms that the local authority feel that they may be forced to, and may be able to, rent some accommodation somewhere within their county and may, in due course, be able to employ and supply three trained workers to care for her. However, all this lacked any specificity or detail whatsoever. I have absolutely no information (nor, indeed, do the local authority) of the address, or facilities of any proposed rented accommodation. I have absolutely no names of any proposed carers, nor their qualifications or experience. However, the local authority plead with me to make some sort of DOLS type order to give a veneer of legality to what they seek and propose” [para 32].
• “In my view, there has to be some limit to these repeated applications to this court for DOLS type orders”. Counsel on behalf of the hospital trust, had drawn Mr Justice Holman’s attention to two recent authorities in which High Court judges have refused to make DOLS type orders: -
  • One is a decision of Poole J in Nottinghamshire County Council v LH (A child) (No. 1) [2021] EWHC 2584 (Fam) in which he declined to make a DOLS type order in circumstances not dissimilar to the present. He said in that case: “Depriving her liberty in that setting would not provide her with a safety net - it would not keep her safe or protect her. To the contrary every hour she is deprived of her liberty on this unit is harmful to her.” [para 33]
  • The other authority is a decision of MacDonald J in Derby CC v CK & Ors (Compliance with DOL Practice Guidance) (Rev1) [2021] EWHC 2931 (Fam). In that authority, which concerned unregistered placements, he said: “I am satisfied that the court should not ordinarily countenance the exercise of the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply for registration.” [para 34].
• Mr Justice Holman referred to Poole J’s conclusion in Nottinghamshire County Council v LH (A child) (No. 1) [2021] EWHC 2584 (Fam) that “...although the inherent jurisdiction must be available in these troubling cases, it cannot be treated as a rubber stamp to authorise the deprivation of a child’s liberty whenever the court is told that there is no other option available...” [para 35], stating “that is exactly the situation with which I am faced in the present case” [para 36].
• Mr Justice Holman conclude that “I do not have a solution to this case. Clearly, it is the duty of the local authority to whose care this child was entrusted over seven years ago to keep her safe. Provided they act in good faith and do the very best they can, the lawfulness of what they do may be justifiable by a doctrine of necessity. I make crystal clear, as I have done many times during the course of this hearing, that I am not in any way whatsoever indicating to the hospital trust that it MUST now discharge this child, still less ordering it to do so. It must make its own decisions. If it does decide to keep her longer, then it also may be able to justify such a decision by a doctrine of necessity. But I am sorry to say that, at the end of this long day, I am simply not willing myself to apply a rubber stamp and to give a bogus veneer of lawfulness to a situation which everybody in the court room knows perfectly well is not justifiable and is not lawful” [para 37.]

Mr L. Samuels QC attempted to write his judgment in language that the child, Fiona (an anonymised name), could understand. Although his judgment does not raise any new point of law or procedure, Fiona and her intermediary raised at the conclusion of Mr L. Samuels QC’s oral judgment that Fiona had found it helpful that he had explained matters to her in the way that he did. Fiona had been assessed as having the capacity to play a full part in these proceedings and was separately represented.

Background: At the centre of this case is a teenage girl Fiona, aged 14 ½ years old. Fiona grew up living with her mother and brother. Difficulties started in about 2015, when Fiona was 9, and she began to feel suicidal. This was linked to her witnessing an assault on her brother by her mother’s partner at that time [para 4]. In 2019, Fiona began to self-harm and attempted to take her own life. In September 2019, Fiona’s mother decided that she could no longer keep Fiona safe, and she asked the local authority to look after her under s.20 Children Act 1989. In October 2019 she had to be sectioned under s.136 Mental Health Act 1983 and she spent several weeks in hospital receiving treatment. On 13 December 2019 the local authority applied for a secure accommodation order under s.25 Children Act 1989 and the court made the order on the basis that Fiona had a history of running away and that if she did so again, she would be likely to suffer significant harm. Fiona stayed at the secure unit for over a year before moving to A Children’s Home on 11 February 2021 under an interim care order. At the same time, the local authority sought a Deprivation of Liberty order. Fiona continued to make progress at A Children’s Home. The local authority is actively planning for Fiona to return home however, they are worried that this progress may not continue if she returns home too quickly [para 15]. The local authority sought a care order in their favour and maintains that it is also necessary and proportionate to extend the existing order authorising them to deprive Fiona of her liberty. They have amended the proposed restrictions after hearing the submissions of the other parties [para 16].

The parties’ position: Fiona’s mother agreed that she cannot come home immediately, much as she would want her to. Fiona’s mother did not actively support the local authority’s application for a care order, preferring instead for her agreement to Fiona staying at A Children’s Home voluntarily under a section 20 placement [para 18]. Fiona’s mother originally said that she agreed that an order depriving Fiona of her liberty is necessary but now, having considered this further, she opposes it. She questions whether the regime at A Children’s Home and the restrictions currently placed upon Fiona amount to a deprivation of her liberty. The fact that restrictions may become necessary in the future would not be a reason to make such an order now (Hertfordshire CC v NK and AK [2020] EWHC 139). For example, Fiona currently has access to the grounds at A Children’s Home using her fob, is allowed to be unsupervised for 15 minutes at a time and rarely has her belongings searched or faces restrictions on her use of her telephone. The last time she was subject to physical restraint was on 27 June 2021 (and this was the only time at A Children’s Home). In any event, these restrictions are not, she says, proportionate or necessary given the progress Fiona has made in recent months [para 19].

Fiona’s father is very pleased about the progress she has made at A Children’s Home and wants her to return home when she ready to do so. He supports the mother’s concerns and proposals. He would like to be able to see Fiona unsupervised and is willing to sign a written agreement with the local authority so that this can happen. Like the mother, he did support the making of an order authorising the deprivation of Fiona’s liberty, but he now welcomes some scrutiny and analysis to ensure it is necessary and proportionate [para 20].

The Guardian agreed with the local authority that Fiona will not receive the same level of therapeutic intervention if she was to return home at the present time. She believes that Fiona should stay at A Children’s Home for now. The worst thing that could happen for Fiona would be for her to return home too quickly and then for her to come to harm at home or for her to have to move again [para 23]. The Guardian supports the necessity for an order depriving Fiona of her liberty in this case. She maintains that the restrictions do amount to a deprivation of liberty and are needed to keep Fiona safe [para 24].

Fiona agrees that she should remain at A Children’s Home at the moment but would like a clear plan as to when she is going to go home [para 26]. Fiona felt that it is not necessary for Mr L. Samuels QC to make an order depriving her of her liberty [para 28]. Mr L. Samuels QC met with Fiona on 8 December, and she impressed him as a mature, intelligent and articulate young person [para 27 & 28].

The Law: The law on this issue is well known and summarised in the case of Salford CC v NV, AM and M [2019] EWHC 1510. The right to liberty is protected by Article 5 of the European Convention on Human Rights and Article 37 of the United Nations Convention on the Rights of the Child. Any interference with Fiona’s liberty must be in accordance with the rule of law, and only used as a measure of last resort and for the shortest possible time [para 37].

Decision: Mr L. Samuels QC agreed with everyone that Fiona needs to stay at A Children’s Home for a little longer [para 30]. He stated that everyone should work towards Fiona coming home in time to start the school year in September 2022 [para 32] and that there must be clear steps to achieve this as set out in the local authority’s transition plan. It is also important that Fiona’s mother receives an up to date and fair assessment of her ability to care for Fiona. Mr L. Samuels QC was clear that the decision about when it is time for Fiona to come home should be one that is agreed by the professionals working with her and for the final decision to be made by the local authority. He agreed with the Guardian that it could be dangerous for Fiona to return home too soon or without proper planning and support services in place [para 33].

Turning to consider the necessity of an order authorising Fiona’s deprivation of liberty, Mr L. Samuels QC did not think this situation was comparable to that in Hertfordshire CC v NK and AK [2020] EWHC 139 [para 39]. Mr L. Samuels QC considered that the restrictions imposed upon Fiona amount to a deprivation of her liberty [para 40]. He went on to consider whether he was satisfied that such a deprivation of liberty is in Fiona’s best interests, whether it is proportionate and whether it is necessary to keep her safe [para 42]. Mr L. Samuels QC concluded that her positive progress needs to continue for a little longer and to be stress tested. He carefully reviewed the proposed deprivations and considered them to be proportionate and necessary given the history of this case [para 42]. Mr L. Samuels QC stated that he would not agree an order for a further 12 months and therefore made the order to last until 26 August 2022. He emphasised that the restrictions authorised are permissive only and are not a requirement. He stressed that there should be further communication with A Children’s Home to underline that point as it would not be right for Fiona to be subject to a greater degree of control of supervision than is strictly necessary to protect her from harm, simply because of the terms of the DOLS order that is in place [para 43].