Re X (Child: Deprivation of Liberty: Lack of Placement) [2023] EWHC 3416 (Fam)

Queenet Awesu Queenet Awesu 15th February 2024

The placement of young people with complex needs is a problematic area that continues to cause concerns for all professionals and services. Frequently, the judiciary must adjudicate on whether they should use their inherent jurisdiction to deprive a child of their liberty.

In the case of Re X (Child: Deprivation of Liberty: Lack of Placement) [2023] EWHC 3416 (Fam) the court considered the case of a young teenage girl who has suffered with years of behavioural and mental health issues. X, like many other young people, has very complex caregiving needs. Many children in this situation have needs so significant that they are beyond parental control. This has resulted in a substantial demand for local authorities to accommodate them in appropriate placements that can meet their needs. There are insufficient placements available. 

The lack of suitable placements has resulted in the need for unconventional ‘residential units’ consisting of a rented house with a high number of staff containing the child as best they can until a more suitable placement becomes available.

In the current case, X resided in a hospital and was protected by a DoLS order. This case concerned a DoLS application so that she could be transported to, and kept at, a residential placement. In his judgment, HHJ Moradifar made unconcealed comments about the state of the world and the system that is supposed to protect young people like X but is not equipped to do so. The judge found this quite troubling. HHJ Moradifar reminded us that the lack of placements for these young people is deeply concerning, and this issue is a very present crisis that should be urgently addressed. The lack of placements nationwide coupled with the lack of resources, especially therapeutic resources which are paramount to the child's development and ability to transition into adulthood, will result in them being neglected of the primary care and support they need to navigate life. The lack of support may also jeopardise any chance of them trying to live as much of an everyday life as possible.

In this case, X was fortunate not to fall through the gaps between secure and regulated accommodation, as the hospital could keep her safe despite their challenges. Still, X is only one of many young people who cannot access the support and resources they need. The lack of placements for these young people means that they are left to struggle without appropriate support and services. The probability they will continue to require professional support as adults also significantly increases.

Whilst it is becoming standard practice for the local authority to rely on the inherent jurisdiction to authorise the deprivation of children's liberty within placements, equivalent to secure accommodation, we must maintain sight of still trying to find a more suitable solution. The inherent jurisdiction is being used to bypass a statutory regime specifically regulated to effectively meet the needs of qualifying children. The suggested method of addressing this situation is to reverse the existing regulatory provisions. Section 25 of the Children Act 1989 does not prescribe limits or requirements on what can and cannot be lawfully used as secure accommodation or 'accommodation restricting liberty'. Instead, the regulations do so. It can be difficult for children such as X who are not at fault for their complexities, but also for the adults supporting them, to meet their needs by trying to find a suitable placement that will cater for these young people. It is crucial that these placements can provide them with therapeutic, emotional, and educational needs; despite the challenges they face, they are still children. 

The regular reliance on the inherent jurisdiction to cover the lack of resources and placement and to ‘plug the gap’ is what HHJ Moradifar refers to as the ‘silent crisis’ in his judgment. However, it should be noted that local authorities do not choose to utilise the path of placing these vulnerable children in unregulated placements. Frequently, they are the only option because of the lack of appropriate provisions. Whilst this option is a temporary fix, we should maintain sight of the fact that the situation could and should be better. Although the inherent jurisdiction provides a level of safeguards, formal regulatory provisions are absent. The lack of proper provision in this jurisdiction of the clinical, residential and other support services so desperately needed by increasing numbers of young people is embarrassing. The judgment of Re X is yet again a siren ringing for a desperate solution for these young people.

Kerrie Croxford represented the Local Authority in Re X. 

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