David Lock QC considers the looming crisis for children in local authority care being deprived of their liberty. What should local authorities do for looked after children in secure accommodation on 9 September?
From 9 September 2021, the types of accommodation that can be used by local authority Social Services departments when placing a looked after child is being limited by law by new Regulations. This will mean that it will be unlawful for local authorities to place a child under the age of 16 in accommodation which is not within limited categories set out in new Regulations, and will leave many local authorities without lawful placements for some looked after children.
The background legal framework
The background to this problem is a little complex – so please bear with me. Local authorities have duties under s20(1) of the Children Act 1989 (“CA”) to provide accommodation to defined categories of children in need in their area as well as in limited other circumstances. Children provided with accommodation by a local authority, including those in care, are defined as “looked after children”: see s22(1) CA. S22C CA defines the ways in which a local authority can accommodate and maintain looked after children.
If a local authority does not place a looked after child with its parents, persons with parental responsibility or a person named in a child arrangements order, s22C(5) provides that “they must place [the child] in the placement which is, in their opinion, the most appropriate placement available”. The term “placement” is defined in s22C(6) to include a placement with an individual who is a relative, friend or other person connected with the child and who is also a local authority foster parent, a placement with a local authority foster parent and a placement in a children’s home registered under Part 2 of the Care Standards Act 2000. S22C(d) then provides the power for a local authority to place a child by making “other arrangements”. However the types of placements available to a local authority can be limited by Regulations. There are other provisions in s22C which govern the steps that a local authority has to follow when choosing a placement, but they are not relevant for present purposes.
The Secretary of State made Regulations in 2010 which, amongst other matters, govern the types of placements where a local authority can place a child in exercise of its powers under s22C(6), namely the Care Planning, Placement and Case Review (England) Regulations 2010 (“the 2010 Regulations”). Part 4 of those Regulations makes provision for different types of placements.
The vast majority of placements are made by local authorities to premises which are not owned by public bodies. They include foster parents who foster children in their own homes, children’s homes run by charities or for profit companies and a variety of other types of premises. Most placements are in locations which are registered with either Ofsted or the Care Quality Commission (“CQC”) and hence operate under a regime which is regulated by a government quality assurance body and are subject to regular inspections. It is unlawful for provide health or care services without being registered with CQC but it is not necessarily unlawful for an operator of a service providing accommodation for children to be registered with Ofsted. However the 2010 Regulations did not prohibit local authorities placing children in “unregulated settings”. Instead, Regulation 27 of the 2010 Regulations set out steps that a local authority had to follow when placing a looked after child in an unregulated setting, including a specific set of factors that had to be considered as set out in Schedule 6 to the Regulations.
The Policy Shift
In recent years there has been a shift policy under which children who have been drawn into criminality, particularly in “county lines” drug trafficking and young women at risk of CSE, have been increasingly recognised as victims as opposed to being treated as juvenile offenders who should be dealt with by the criminal justice system. These children have increasingly been recognised as needing to be accommodated by local authorities in appropriate placements as opposed to being exposed to risk taking behaviour which may land them in front of the criminal courts or worse. Whilst this is undoubtedly a positive development (in my view), it has created a demand for additional accommodation for these children, often in secure settings. The lack of placements in regulated settings has led to an increase in local authorities placing looked after children in unregulated settings. That has been referred to as a “scandal” by McDonald J who In re X (A Child) (No 3)  EWHC 2036 (Fam) referred to:
“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.”
In October 2020 McDonald J returned to this theme in Lancashire County Council v G and N  EWHC 2828 (Fam) saying:
“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.”
However, it is not right to blame local authorities for this problem because local authorities can only commission services from privately run care facilities that have space and are prepared to take on these troubled young people. There is a huge competition between local authorities for the small number of available places, prices are sky high but there are only a limited number of private operators who want to work in this high risk area of the market. Whilst it appears everyone accepts that it is wholly undesirable to place vulnerable children in unregulated settings, the only solution to this problem is greater availability of regulated placements, and that can only be created by action by the private and voluntary sectors.
A government consultation in February 2021 appeared to consider that this was a regulatory problem. It said:
“In recent years, we have seen increases in the use of independent and semi-independent settings, and children in care and care leavers aged 16 and 17 now depend on these settings in similar volumes to children’s homes. This is, in part, due to having more older children in the care system now than we have ever had, and these types of settings are often the right choice for 16 and 17 year olds. They can offer a place to live with more independence, and when combined with the right level of high quality support to meet the needs of the older children placed there, they play a vital role in the care system”
The government has responded to this consultation by making the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 (“the 2021 Regulations”). Regulation 4 of the 2021 Regulations adds a new Regulation 27A to the 2010 Regulations which provides as follows
“A responsible authority may only place a child under 16 in accommodation in accordance with other arrangements under section 22C(6)(d), where the accommodation is—
- in relation to placements in England, in—
- a care home;
(ii) a hospital as defined in section 275(1) of the National Health Service Act 2006;
(iii) a residential family centre as defined in section 4(2) of the Care Standards Act;
(iv) a school within the meaning of section 4 of the Education Act 1996(4) providing accommodation that is not registered as a children’s home(5);
(v) an establishment that provides care and accommodation for children as a holiday scheme for disabled children as defined in regulation 2(1) of the Residential Holiday Schemes for Disabled Children (England) Regulations 2013(6)”
There are also restrictions limiting placements for Scotland and Wales. A “care home” is defined in section 105(1) CA to have the same meaning as it has for the purposes of the Care Standards Act 2000 in respect of a care home in England and children’s homes are similarly defined. The effect of the 2021 Regulations is that from 9 September 2021 a placement by a local authority in an unregulated setting is not lawful for any looked after child who is under 16 years of age. That almost certainly applies to existing placements as well as new placements. So, as local authorities children under 16 who are presently in unregulated settings must be moved to a regulated setting. However, it is wholly unclear what a local authority is supposed to do if there is no appropriate placement available.
There will be an immediate problem for any local authority that is accommodating a child under the age of 16 in an unregulated setting which deprives the child of his or her liberty (as will often be the case). These types of accommodation will generally not be approved premises under s25 CA and thus an application has to be made to the High Court to exercise its inherent jurisdiction to declare that the deprivation of liberty is lawful. On 30 July 2021 the Supreme Court ruled in Re T (A Child)  UKSC 35 that the inherent jurisdiction could be used to declare that such placements, however undesirable, were lawful if they were the only practical option available to local authorities.
However, it is hard to see how a placement can be declared lawful under article 5 if it is unlawful under UK domestic law. Hence, there is a looming legal problem for local authorities who are accommodating children under the age of 16 who in unregulated settings, particularly if they are being deprived of their liberty. There are no easy answers and any local authority faced with this problem may wish to seek specialised legal advice.