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High Court authorises deprivation of liberty for 16 year old and expresses concern at Ofsted threatening prosecution of children's home where she lives

A judge has expressed concern about Ofsted’s intention to prosecute a non-registered children’s home in which a child deprived of liberty appears to be making progress.

Mrs Justice Lieven, sitting in the Family Division of the High Court, ordered provider Nurtured Future Living (NFL) to sent her a statement for when she will resume the case on 19 October, and invited Ofsted to do the same.

The case brought by Birmingham City Council concerns 16-year-old T who has “experienced developmental trauma as a result of neglect, generalised and social anxiety, learning difficulties and secondary ADHD symptoms”, the court was told.

There had been cases of extreme emotional dysregulation during which she had put herself and others at risk and incidents that required “quite extensive physical restraint and police intervention”.

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In Birmingham City Council v R & Ors [2021] EWHC 2556 (Fam) Lieven J said social workers feared that when seriously agitated T's dysregulation could place herself and others at very considerable risk.

Since November 2020 T has been in a placement provided by NFL and had become “relatively settled, is now enjoying school and is engaging with education for the first time in some time”.

T’s mother said moves between placements were bad for her mental health and her emotional stability and the judge said: “I am very keen in this judgment to try to ensure that T does not have to move again until there is a reasonably certain and secure place for her where the court can have some optimism she can stay for a reasonable period.”

Regulator Ofsted had though threatened to prosecute NFL if T remains at the placement.

As a result, NFL served notice on Birmingham but said were it not for Ofsted's position it was prepared to keep T and recognised the progress she has made.

Lieven J said: “It is by reason of that threat by Ofsted that [Birmingham] has asked me to give a reasoned judgment so that Ofsted can fully understand why I authorised the continued placement of T.”

Birmingham had been unable to find an alternative placement for T. “There is a concern by [Birmingham], which I completely support, that if they were to find a placement outside the area, that would disrupt the support network, her school and undermine her hard-won stability,” Lieven J said.

“In my view it would be strongly counter-therapeutic for T to be moved out of the area unless there was simply no other alternative.”

She also supported the council’s contention that placing T in a registered multi-placement children's home would not be in her interests.

Lieven J said guidance from the president of the Family Division stated that if an order placing a child in an unregistered placement were made Ofsted must be notified and the court must very carefully consider the consequences.

“It is in my view clear that I retain the power to authorise the deprivation of liberty at the placement whether or not the local authority has the vires to place T there,” she said.

The judge said the case should come back to the court as quickly as possible to allow her “to understand better the position of NFL and of Ofsted.

“I am therefore going to order that NFL produce a statement and invite Ofsted to do so as well and put the case back in my list in four weeks' time.”

Turning to Ofsted’s prosecution threat, Lieven J said: “I would not be making an order to authorise the deprivation of T's liberty at the placement for four weeks if I understood Ofsted's concerns to be around the quality of the care provided and T's safety.

“However I have very limited information about Ofsted's position and think therefore it is of the greatest importance that Ofsted let the court and [Birmingham] know their position as to any prosecution and why it was threatening prosecution against NFL.

“I hope if Ofsted's concerns were not about the quality of care but were rather about the principle of registration then this judgment will assist in explaining to them why I have continued to authorise the deprivation of liberty.”

Mark Smulian

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