Second judge in a week sends ruling to Education Secretary to highlight lack of secure residential placements

A second judge in a week has sent a copy of his judgment to ministers to express concern at the lack of secure residential placements.

Last week Mr Justice Cobb sent the Secretary of State for Education and the Minister for Children amongst others a copy of his ruling in S (Child in Care. Unregistered Placement) [2020] EWHC 1012, warning of a “nationwide problem” with the very limited capacity in the children's social care system for young people with complex needs who need secure care.

It appeared that demand for registered places was “currently outstripping supply”, the High Court judge said.

Now His Honour Judge Dancey has sent the Secretary of State a copy of his judgment in Dorset Council v E (Unregulated placement : Lack of secure placements) [2020] EWFC B17, which concerned E, an extremely vulnerable young man aged 16.

On 24 April 2020 Dorset Council had applied under the inherent jurisdiction for authorisation of deprivation of liberty in respect of E. The council also applied to the family court for an interim care order in respect of him on the ground that he was beyond parental control. 

HHJ Dancey said that at a hearing on 1 May it was apparent that everybody had grave concerns about E’s risk-taking behaviour to the point that all agreed (E’s parents, AB and CD, included) that he needed a secure placement. At that point E was in an unregulated placement which was unable to manage him.

The children’s guardian said in her position statement, “It is by no means an exaggeration to say that [E] has and remains very much at risk of killing himself, being killed or coming to serious harm”.

Nobody disagreed with that assessment of the situation, the judge said.

Dorset’s position was that as, when they made a referral on 30 April 2020 for a secure accommodation welfare bed, there were 46 live referrals for secure accommodation placements, there was no point in applying for a secure accommodation order.

HHJ Dancey was told that Dorset had made a referral and would, if needed, use the 72-hour provision under section 25(2)(a) of the Children Act 1989 and apply at that point.

The judge said he could not see the logic in that position and had said so. “It seemed to me that if the test for the making of a secure accommodation order was made out and it was common ground that E required a secure placement, then Dorset should make an application for a secure accommodation order.

“I was concerned that the social work evidence and interim care plan filed with the applications referred only to placement in an unregulated placement while Dorset sought a more suitable long term residential placement for E, which seemed to be at odds with their acceptance that E needed a secure placement. The case summary filed on behalf of Dorset referred to the need for a secure placement, but that was not the evidence, nor their application at that stage.”

The judge said Dorset had agreed to make an application for secure accommodation which he agreed to hear on 4 May. In the meantime, he made the interim care and DOLs orders sought.

HHJ Dancey said that by the time of the hearing on 4 May there had been further developments.

First, there had been further incidents over the weekend, escalating the risks to E. Secondly, an alternative short-term placement had been found for E in a rural setting in East Dorset starting at 12 noon on 4 May. 

“This placement, albeit again unregulated, was thought by all to be safer for E than his current inner-city placement where risks around absconding and drug culture were higher,” the judge said.

HHJ Dancey gave permission to Dorset to amend its existing DOLs application to cover the proposed restrictions at the new placement.

He made the secure accommodation and amended DOLs orders sought with the agreement of all parties, save that (a) E had not been prepared to speak to his solicitor or his guardian to establish his competence to instruct his solicitor separately or to ascertain his wishes and feelings; (b) while his guardian agreed that the new placement was likely to be a better option for E she was, because of Cafcass policy, unable to expressly support DOLs in an unregulated placement.

E’s solicitor proposed to HHJ Dancey that a written judgment might add some weight, albeit only fractional, to the prospects of Dorset finding a secure placement for E and so could only benefit E.

HHJ Dancey continued: “Over the weekend the list of live referrals for secure placements had increased to 50. Placements are secured based on central assessment of suitability and risk. Mr Hawkins [E’s solicitor] suggested that, as E’s risky behaviours have not included the use of weapons, he may well not yet have placed himself above the threshold for acceptability for secure accommodation. There is some hope therefore that, as the risks to E are high but he may be suitable for secure accommodation, a place may be found.”

The judge said it was clear that the local authority was doing its utmost to find a placement for E that will meet his needs as they see it. “It is not entirely clear that the focus has until very recently been on secure accommodation, which is plainly what is required.”

He added: “The problem, put simply, is the lack of secure placements available in England. That is a resourcing issue quite beyond the powers of the local authority.”

HHJ Dancey said that as it appeared to him both (a) that E had a history of absconding and was likely to abscond from non-secure accommodation and, if he absconded, was likely to suffer significant harm; (b) that if he was kept in non-secure accommodation he was likely to injure himself or other persons; the test under section 25 of the 1989 Act was met and the court must therefore make a secure accommodation order. 

“That order will last for three months initially,” the judge said. “The order is also of course permissive only. As things stand it is clear secure accommodation is what E requires, but situations can change with time of course.”

He directed that his judgment be sent to the Secretary of State for Education and to the Children’s Commissioner.  “The important message is that E is at risk of harm to himself or others, possibly fatally so, unless a secure placement can be found for him. At the moment, no such placements are available because there simply are not enough of them.”

The Department for Education has been approached for comment.