High Court judge compelled to highlight “once again” shortage of accommodation for children with highly complex behavioural and emotional needs

A High Court judge has – despite expressing "considerable reservations” – extended an order authorising the deprivation of liberty of a child who is being cared for in an unregulated placement considered ill-equipped to meet his behavioural and emotional needs.

In Tameside Metropolitan Borough Council v C & Ors [2021] EWHC 1814 (Fam), Mr Justice MacDonald ruled against the child's adoptive parents because not depriving him of his liberty would expose him to an unacceptable risk of harm as no alternative welfare provision was currently available.

The respondent parents wished to implement a plan which would see the 17-year-old boy, named in the court documents as 'L', return to their care.

The local authority's application to extend the order for the boy was made in February 2020. It was opposed by the respondent parents, who adopted L after he was removed from his birth mother's care following a history of maternal alcohol abuse, neglect, inconsistent parenting and concerns around sexual abuse.

In February 2016, L assaulted his parents and, on a later date, caused damage to the family home. Following this, L was provided with accommodation pursuant to s.20 of the Children Act 1989 with his parents' agreement.

A year later, L took an overdose and was assessed as being of significant risk of further overdoses. As a result, care proceedings were issued, and interim care orders were made, leading to L moving to a residential placement.

The care proceedings concluded in 2017 with final care orders being made. Since that date, L has gone on to make thirteen placement moves and seven separate substantive residential placements.

The court heard that each placement had broken down due to L's behaviour, which included being violent and threatening harm and sexual assault towards others, sexually inappropriate behaviour, being racially abusive towards others, weaponising items for use against himself by way of self-harm, causing criminal damage and absconding.

An October 2017 report from an independent specialist service for children displaying problematic or harmful sexual behaviour, named GMAP, found that it is "important that L resides in an environment where he receives clear consistent boundaries. It would be most beneficial if he could reside in a specialist home for young people with harmful sexual behaviours due to the complexity of his needs".

L is currently in an unregulated placement, which does not provide education within the placement.

Additionally, therapeutic provision recommended since 2016 is not available within the placement, and the placement is not staffed by workers trained in the provision of trauma informed care and attachment theory.

However, MacDonald J said that L's guardian did note that L had developed some positive relationships with staff within the current placement, engaging with the social work team and being able to leave the placement on a supervised basis.

"The Children's Guardian further acknowledges that there has been a reduced need to use of force and restraint on L when compared to previous placements," MacDonald J said.

Having considered the competing matters from the respondent parents and Tameside, MacDonald J said that, "with considerable reservations", he was "satisfied that it is in L's best interests to grant a further short authorisation with respect to the deprivation of L's liberty at his current temporary placement".

He added: "Having regard to what I am satisfied is the high risk of L causing harm to himself and harm to others in the form of violence and sexually inappropriate behaviour leading to a risk of arrest, prosecution and incarceration, I am satisfied that it is in L's best interests for to be deprived of his of liberty in his current temporary placement, notwithstanding the significant issues with that placement.

"Not to do so would expose L to an unacceptable risk of harm in the context of there being no alternative welfare provision currently available for L. I am further satisfied that that risk of harm to L is, at present, greater than the risks presented to him by the identified deficiencies in his current placement. Keeping L safe from harm is, at least in the short term whilst alternative suitable provision is identified, a legitimate function of current restrictions amounting to a deprivation of his liberty."

MacDonald J noted the significant difficulties with L's placement that the parents' representative detailed but said he was satisfied that those concerns did not amount to a breach of L's Article 5 rights laid out in the ECHR.

While MacDonald J noted that the ECtHR has previously held that the absence of a facility with the resources to meet the educational objectives and security requirements may amount to a breach of Article 5(1), he said the court "must take into account all material facts and not only the question whether the detention furthers the relevant Art 5(1) purpose".

The aim of keeping L safe from physical and emotional harm outstripped the need for the placement to offer educational supervision, the judge said.

"Further, the local authority is clear that the authorisation it now seeks is one that is to cover the period whilst a search continues in order to identify the correct placement to meet L's needs in place of his current, temporary placement."

MacDonald J also acknowledged the following steps being taken by the local authority:

1. The local authority has arranged for trained residential staff to visit the provision on weekends to support and advise staff within the provision.
2. A request has been made to the Head of Service for access to specialist training around attachment, trauma, inappropriate sexualised behaviours, adolescent training and risk based training to further staffs understanding and approach to support L's complex individual needs.
3. The local authority will make a referral to an Adolescent at Risk Forensic Service and The Child Psychology Service to offer assistance to current and prospective placements to support, educate and assist with meeting L's presenting needs.
4. A team of three social workers will visit L on a weekly rota. L has engaged with all three social workers in some capacity.
5. Social workers will continue to seek L's wishes and feelings and encourage L to engage in small goal setting activities to encourage him to partake in the community with support from staff members.

According to Mr Justice MacDonald, L's case “is one of a number of similar cases in his list, and the lists of the Designated Family Judges of the Northern Circuit, this week in which a local authority is placed in the position of having to seek authorisation to deprive a highly vulnerable child of his liberty in a placement not equipped to meet his highly complex behavioural and emotional needs".

He added: "Within this context, I feel compelled to highlight once again the shortage of provision in this jurisdiction for children, like L, with highly complex behavioural and emotional needs arising out of past physical, emotional and sexual abuse by adults.”

MacDonald J noted that highly vulnerable children in L's position who do not meet the criteria for detention and treatment under the Mental Health Act 1983, and for whom secure accommodation under s.25 of the Children Act 1989 is not appropriate, still require assessment and treatment for emotional and behavioural issues consequent upon early trauma in a restrictive clinical therapeutic environment.

He added: "The continuing and acute shortage of such provision means that L and children like him fall through the gaps, leading to the situation described in this judgment. In so far as this problem is caused by a lack of funding, I am satisfied that, sadly, there is a likelihood that the money not spent on the provision for L of a restrictive clinical therapeutic environment during his childhood to address his complex behavioural and emotional needs will be spent, and perhaps spent many times over, by the criminal justice and penal systems."

MacDonald J directed that a copy of the judgment be provided to the Children's Commissioner for England; to the Secretary of State for Education; to the Chair of the Review of Children's Social Care; to the Minister for Children; to the Chief Social Worker; and to Ofsted.

Adam Carey