Judge says she cannot “wave a magic wand” in deprivation of liberty case concerning teenager

A Court of Protection judge has admitted she cannot “wave a magic wand” to solve a case of a 17-year-old boy with severe learning difficulties for whom suitable accommodation cannot be found.

Mrs Justice Judd ruled the boy DN must return to his family home in the absence of any specialist accommodation willing to take him.

The judge said she had applications before her from DN for welfare orders under the Mental Capacity Act 2005 and from the council, under the inherent jurisdiction, authorising DN’s deprivation of liberty in an unregulated placement.

DN has been living at a residential school since February 2019 and lacks capacity to make decisions as to his residence and care.

The court heard DN made considerable progress at the school but attacked three members of staff, leaving them with significant injuries. The school gave six weeks’ notice that his placement must end.

The council began what proved to be a fruitless search for alternative accommodation.

Judd J said: “No matter how hard the local authority has searched, they have been unable to find anywhere suitable.

“They, and those acting for DN have tried to persuade S school to keep DN at least for another four weeks on the basis of a careful plan, which they say should ensure the safety of DN and all those who care for him or come into contact with him.”

However, the school refused to keep DN any longer as it considered the council’s proposals were still not safe for staff, visitors and other pupils and could put its Ofsted registration at risk, as the placement itself would be unregistered and unregulated within a registered setting. 

Judd J said submissions had been made that Ofsted was unlikely to deregister a body which has allowed a vulnerable young man with nowhere else to go to stay on their property for a relatively short period of any deprivation of liberty authorised by the court.

The school though remained insistent and Judd J noted the only other options were a hotel room or his family home, supervised by agency workers. 

The judge said that “the difficulty for this court and for DN, his parents and the local authority, is that there is no workable option available at all”.

Judd J said: “It was plain when the case came before me that feelings were running very high.

“The local authority and those representing DN submitted that the school were putting up unnecessary barriers and hiding behind regulations in circumstances where it was entirely unwarranted and at the expense of the wellbeing of a young man they had cared for for three years.

“I believe that feelings were running high amongst those responsible for S school as well, as it was pointed out to me that some staff had been off work for weeks as a result of the stress of the incident in May and there had been resignations too.”

Given she was conducting an urgent hearing about DN’s imminent removal from the school “this is not the place to decide who (if anyone) is at fault”, the judge said.

Judd J went on: “Very sadly, I cannot wave a magic wand and find a placement that does not exist.

“At the end of the hearing, there was no change in the position of any of the parties. In those circumstances, and with the greatest of reluctance, the local authority, those representing DN and the parents consented to the application for me to authorise a move for DN from S school to the home of his parents with the level of supervision set out in the care plan (which constitutes a deprivation of his liberty).”  

Although there had been cases where judges refused to authorise wholly unsuitable placements, “I think it would be even more harmful to DN if I were to do that,” the judge said.

“Although it is very sub-optimal at least he will have somewhere to live, and people able to keep him physically safe.”

Judd J said she would “implore” all concerned to keep looking for a suitable placement for DN.

Mark Smulian