Holding up a mirror to the family justice system

The Director of Nuffield Family Justice Observatory, Lisa Harker, speaks to Local Government Lawyer about the role of the NFJO in aiding an understanding of the family justice system, the latest data trends for the national Deprivation of Liberty Court, and the need for an “urgent rethink” on placement provision for children.

In July 2022, the President of the Family Division, Sir Andrew McFarlane, launched the national Deprivation of Liberty Court. Running for an initial one-year pilot phase, it is now more than three quarters of the way through its first 12 months.

The national Deprivation of Liberty Court was set up to improve the process for considering applications for under 18’s to be deprived of their liberty under the inherent jurisdiction of the High Court.

According to latest data published by Nuffield Family Justice Observatory (NFJO), the organisation invited to collect and publish data on applications to the court, a total of 1,069 children have been subject to Deprivation of Liberty (DoL) applications since 4 July.

Lisa Harker, Director of NFJO says this figure is “much more” than expected, and is calling for a national government initiative to “re-design support for children with complex needs”.

Data produced by the NFJO found that on average, there have been 116 applications to the national DoLs court per month, with the highest number of applications issued in March 2023 (142 applications). In the most recent month, April 2023, there were 88 applications. 

“Prior to setting up the National DoL court, data was not routinely being collected by the court, so the true extent of the use of DoL orders was unknown”, says Harker. “We knew that Cafcass had recorded 579 DoL applications in 2020/21, so we were surprised that the numbers in 2022/23 were so much higher.

“The rise in DoL orders seems to have been driven by several factors including: a fall in inpatient mental health beds, a decrease in secure accommodation provision, a rise in the number of children with complex needs and increased awareness of the necessity of applying for an order if you intend to deprive a child of their liberty.”

Looking at how the number of applications vary by region, the NFJO found that between July 2022 and April 2023, just over a fifth (21.5%) of all applications were made by local authorities in the North West of England, followed by 17.2% of applications from local authorities in London.

Local authorities in the North East have made the fewest number of applications (3.5% of the total). The NFJO notes that this pattern of regional variation has “broadly remained the same” since July.

Harker says: “First it is important to stress that this is a national issue – almost all local authorities have made applications for DoL orders in the last ten months. However, it appears some local authorities are more ready to apply for DoLs orders than others.”

She adds: “This might be partly to do with the needs of the local population and whether secure accommodation placements are available in their area. But it also appears that some local authorities are more likely to apply for legal orders than others.”

A research project published this year carried out by NFJO analysed the characteristics of the young people who are the subject of DoL applications. “Our in-depth analysis of the applications relating to 208 children found that the majority were already well known to children’s services, many having had long term involvement with children’s social care. Only 10 of these children had recently come to the attention of the local authority”, Harker says.

She notes that many had experienced “multiple placements, and some had moved placements as many as 10 times”.

Three in every five children had mental health difficulties and one in three had a physical or learning disability, she reveals.

Further, it was found that nearly half of the applications were requesting placement in unregistered accommodation such as holiday lets, Airbnb’s and rented flats, “a reflection of the shortage of secure accommodation across the country”, Harker adds.

The President of the Family Division, Sir Andrew McFarlane, has himself frequently highlighted the difficulties regarding the lack of placements for children requiring secure accommodation.

In Re X (Secure Accomodation: Lack of Provision) [2023] EWHC 129 (Fam), he noted the need to “draw public attention to the very substantial deficit that exists nationally in the provision of facilities for the secure accommodation of children”.

Sir Andrew emphasised that it was “not the role of the courts” to provide additional accommodation, and outlined the need for those in Parliament and government to “take the issue up”.

Harker says: “We need to start by asking ourselves what young people with complex needs need.

“For example, it is obvious that the staff working with these children need to be highly skilled and experienced. The team around the child needs to be consistent. There needs to be joint working between health and social care.”

She adds: “There is an urgent need to improve the support for the many children currently subject to DoL applications. But in the medium to long term there is also a need to rethink provision entirely.

“There is no clear evidence that secure accommodation is effective for children with complex needs, so it is not simply about building more of the same.

“We need to look at why so many children are reaching a crisis point, and ask ourselves why previous attempts to support these children have been so unsuccessful.”

Harker notes that when children have been through multiple placement breakdowns “we should be looking to change the nature of the placements, rather than expecting children to change”.

In the past, she has called for an “urgent rethink” about improving the lives of “the most vulnerable children in our society”.

Asked what form she thinks this should take, she said: “We need a national government initiative, jointly led by the Department for Education and the Department for Health and Social Care collaborating with local authorities, to re-design support for children with complex needs.”

In July, the 12-month initial pilot phase of the national DoL court launched by the Family President will come to an end.

Although noting it is “not yet clear” what will happen beyond the initial pilot in terms of an extension, Harker says that a key success has been the opportunity to record the number of applications, by having a “single gatekeeping process”.

“We have been able to explore the needs of the children for the very first time”.

Lottie Winson is a reporter at Local Government Lawyer.