Children subject of deprivation of liberty applications spending “significant” amount of time in suboptimal placements, research highlights

It is evident that children who are the subject of applications to the Family Court to authorise a deprivation of liberty, are spending significant periods of time in "suboptimal" placements without the therapeutic support they need to make significant long-term improvements, according to a review of published judgments by the Nuffield Family Justice Observatory (NFJO).

The report, Deprivation of liberty: A review of published judgments, analysed 31 judgments published between 2014 and 2021 relating to applications to the family court to authorise the deprivation of liberty of a child in a secure children's home under section 25 (s.25) of the Children Act 1989 (and section 119 (s.119) of the Social Services and Well-being Act (Wales) 2014), or under the inherent jurisdiction of the High Court.

A range of restrictions on the liberty of children who are subject to deprivation of liberty orders were observed in the report. These include constant supervision with high staff to child ratios, being kept in locked environments, having limited or no access to a mobile phone or the internet, and being subject to restraint interventions.

The report noted that placements were often many miles from the child's home. In one case highlighted by NFJO, a child had spent almost three years living in single occupancy placements, subject to restrictions on his liberty, with very limited opportunities to engage with other children.

Concern was raised by the organisation about tracking the status of children subject to deprivation of liberty orders after the hearings had been conducted. Some cases return to court, and it is possible to get a sense of how the case progresses, it said.

"However, in most cases, it is unknown what happens after an order is made. In general, there is a lack of research and evidence about children's outcomes following a secure placement."

The research found that many of the children were known to children's services from an early age – “either adopted, subject to multiple child protection interventions and/or entered care in early childhood".

It added: "They often had behavioural issues that were identified early on (e.g. attention deficit hyperactivity disorder (ADHD), autism, emotion dysregulation) and that became harder to manage as the child reached adolescence, resulting in the escalation of issues that led to the child being placed in a secure setting. In may cases there was lack of evidence of early intervention and support for families.”

In other cases, where children have come to the attention of children's services late, there was a "relatively quick escalation in the child's behaviour and risks that led to them being placed in a secure setting", the report noted.

The NFJO research highlighted a trend seen in the period before the application to the court, where most children were subject to multiple placement moves, frequent breakdown of arrangements made for their care, and disruption to their lives. This included previous periods of secure accommodation or placements in unregistered settings.

In 2020/21, 392 applications were made in England and Wales for secure accommodation orders, and 579 applications were made for deprivation of liberty orders under the inherent jurisdiction in England.

The NFJO report said judgments had confirmed that the inherent jurisdiction of the High Court can be invoked despite the existence of the provisions relating to secure accommodation in s.25 of the Children Act 1989.

“However, some judgments have indicated a concern that, in some cases, the inherent jurisdiction is being used to bypass the framework set out in s.25 of the Children Act 1989," it said. "Linked to this, judges have expressed concern that in some cases there have been delays with the child being appointed a guardian or joined as a party, or periods of time where no legal authorisation has been in place for restrictions placed on the child, or that review processes have been inconsistent.”

Adam Carey