Family President renews judicial warnings over “substantial deficit” of secure accommodation for children, accuses Department of Education of seeming to “wash its hands” of problem

The President of the Family Division, Sir Andrew McFarlane, has issued a judgment with the primary purpose, "once again", drawing attention "to the very substantial deficit that exists nationally in the provision of facilities for the secure accommodation of children".

Sir Andrew emphasised that it was “not the role of the courts” to provide additional accommodation, and outlined the need for those in Parliament and government to “take the issue up”.

The Department for Education wrote to the court on 11 November, however the President refused a request for the Secretary of State to be excused from attendance at a hearing on 16th November, forcing them to appear before him in court.

The case of RE X (Secure Accommodation: Lack of Provision) concerned a 15-year-old girl, X, with a history of absconding, aggressive and threatening behaviour, self-harm and suicidal ideation.

X had suffered significant trauma and adversity in her childhood, and following a series of incidents in which he assaulted family members, she was deemed to be ‘beyond parental control’ and a risk to herself and others by the local authority.

In March 2021, X was detained under the Mental Health Act 1983.

The girl was sent to a number of community placements in which she displayed ‘extreme behaviour’. As noted by the Family President, there was an “inadequacy of the community placement either to contain her or meet her needs.”

On 6th November 2022 Mrs Justice Lieven made a secure accommodation order and directed that there should be a further hearing to consider the search for a secure placement for X, the court having been told that there were likely to be difficulties arising from the lack of availability of such places.

Lord McFarlane said: “The situation facing the court and the local authority with respect to X is, unfortunately, typical. In recent years, judges of the Family Division have regularly published judgments seeking to draw attention to the parlous level of provision."

He also noted that although the point had not been argued before the court, it “must be the case that the State has duties under the European Convention of Human Rights, Articles 2 and 3, to meet the needs of these children and to protect them from harm”.

In response to the direction made in the order of 6 November, the court received a letter dated 11 November from the Deputy Director of Looked After Children Placements on behalf of the Secretary of State [‘the DfE letter’]. The letter made the following points:

1. The responsibility for ensuring a looked after child is placed in the appropriate care setting lies with local authorities;
2. Local authorities have a duty to ensure sufficient appropriate provision, including secure accommodation, for the children they look after;
3. The final decision on placement lies with the provider of the children’s home;
4. The Secretary of State has no responsibility for decisions on the placement of individual children into secure accommodation in England;
5. The DfE set up and supports the Secure Welfare Coordination Unit (SWCU);
6. Local authorities should have their own placement policies based on the Care Planning, Placement and Case Review (England) Regulations 2010. While there is no duty to provide secure accommodation in their area, there are general duties on local authorities to provide accommodation for looked after children. Reference is made to the 2010 Statutory Guidance.

The DfE letter then stated: "While clear that LAs must fulfil their sufficiency duty, we are sympathetic to the challenges presented in this case and recognise the difficulty LAs sometimes face in commissioning suitable accommodation for some children with complex and very high needs. The Government is supporting LAs to meet their statutory duty through the provision of significant capital investment. The 2021 Spending Review announced £259 million of capital funding to maintain capacity and expand provision in both secure and open children’s homes. This will provide high quality, safe homes for some of our most vulnerable children and young people and create new places and support provision in secure children’s homes in all nine regions of England."

The letter concluded with a report of the current "very high volume of referrals" that are live on the SWCU, before indicating that the Secretary of State considers that "it would not be an effective use of public funds" for counsel to be instructed to attend the planned hearing; the Secretary of State therefore asked to be excused from attendance.

Upon receiving the letter, the President of the Family Division refused the request for the Secretary of State to be excused from attendance at the hearing on 16th November.

At the hearing on 16 November, it was not possible to resolve the issue of identifying a placement in a secure unit for X, Sir Andrew  said. It was, however, possible to “seek greater engagement from the Secretary of State on the wider issue of the chronic shortfall in the provision of secure welfare accommodation”, he said.

The Family President said: “During the hearing [on 16 November] I expressed my disagreement with the central proposition that the Secretary of State had nothing to contribute on this issue. The problem being faced by those trying to find a secure placement for [the girl] is not a one-off; it was, I explained, one being shared by the 70 or so others for whom places were being sought that day, and they and their forebears who have faced similar odds for the past decade or so, every time that these and similar statistics are quoted.

“The lack of secure placements is long-standing and chronic. My view, expressed during the hearing, was that the stance taken by the Department for Education, to the effect that it was not its problem and was the responsibility of individual local authorities, displayed a level of complacency bordering on cynicism.

“It was, I observed, shocking to see that the Department for Education seemed to be simply washing its hands of this chronic problem”.

During the hearing, on instructions, Mr Holborn, counsel for the Secretary of State for Education, accepted the court’s request for the Secretary of State to assist by filing a skeleton argument dealing with the supply and demand for secure children’s home placements.

The skeleton argument prepared on behalf of the Secretary of State for a hearing on 6 December included this “important passage”, Lord McFarlane said:

“The SoS’s position of principle is known to the Court and the parties, namely that the duty to provide for X’s needs, including secure accommodation, lies upon the applicant local authority and not the SoS. However, the SoS accepts that, nationally, there are significant problems with the availability of sufficient placements particularly in those cases involving children with complex needs. This requires action by His Majesty’s Government (“HMG”) collectively (not just the SoS for Education) to support local authorities to meet their statutory duties”.

Speaking on the submission made on behalf of the Secretary of State, the Family President said: “They record, it would seem for the first time, an acceptance by the Secretary of State for Education that, nationally, there are significant problems with the availability of sufficient placements and that this requires action by His Majesty’s Government collectively to support local authorities to meet their statutory needs”.

In December 2022, a place in a secure unit in Scotland was found for X, where she remains placed.

Concluding his judgment, Sir Andrew said: “This judgment does not record any decision by the court, either about X or more widely as to the law. As I have said, its primary purpose is for the court, once again, to draw public attention to the very substantial deficit that exists nationally in the provision of facilities for the secure accommodation of children. In drawing to a close, it is simply necessary to reiterate the central message by stressing that very senior judges have, for over six years, been consistently calling for Parliament and government to acknowledge the need for action to address the gross lack of registered secure accommodation units.

“It must be accepted that simply adding to the number of judgments calling for action will not improve the position for young people such as X, but in the present situation, that is all the judges can do. It is a situation that will not change until urgent and effective action is taken by government and Parliament to discharge the obligation that is on the State to protect the country’s most vulnerable children”.

He noted that following the “acceptance” by the Secretary of State for Education that there are significant problems with the availability of sufficient placements, “it is to be hoped that this marked change from the approach trailed in the Department’s letter of 11 November does indeed result in action and that the need for the court to hand down judgments of this nature will be a thing of the past”.

Lottie Winson