Study highlights “extreme vulnerability” of children subject to deprivation of liberty applications amid concerns at lack of appropriate provision

A study carried out by Nuffield Family Justice Observatory of court applications that seek to deprive children of their liberty in England and Wales has highlighted the “extreme vulnerability” of the children involved.

The research found that in 95.2% of cases, there were “multiple concerns” that led to the Deprivation of Liberty (DoL) application being issued.

The study, Nuffield FJO said, “raises further questions about the severe shortage of appropriate provision to meet [the children’s] needs”.

It was found that in just under half of applications (45.6%), children were going to be placed in unregistered settings – including semi-independent accommodation, rented flats or holiday lets.

The report noted: “Despite the prevalence of complex emotional difficulties and self-harming behaviours, very few children met the criteria for in-patient mental health treatment.”

The report comes after the President of the Family Division, Sir Andrew McFarlane, issued a judgment with the primary purpose, "once again", of 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”.

An application can be made to deprive a child of their liberty via the ‘inherent jurisdiction’ of the High Court if a local authority has concerns about risks to their safety, or that of others, and no other suitable place – such as in a secure children’s home, or provision under the Mental Health Act – is available.

Intended as a ‘last resort’ measure, in England there was a 462% increase in deprivation of liberty (DoL) applications under the inherent jurisdiction between 2017/18 and 2020/21, Nuffield FJO said.

In July 2022, a national DoL court was launched at the Royal Courts of Justice as a 12-month pilot, to deal with all new applications to deprive children of their liberty under the inherent jurisdiction.

Nuffield FJO analysed applications received in the first two months (comprising of 208 children, who were subject to applications for DoL orders between 4 July and 31 August 2022) to provide a better understanding of the children involved, and the type of care and provision they need.

The Nuffield FJO report described the vulnerability of the children as "striking". The analysis found that most had experienced "significant adversities and trauma throughout their childhoods, including physical or sexual abuse and neglect, rejection and bereavement”.

In almost all cases (95.2%), there were “multiple concerns” that led to the DoL application being issued. These included concerns about the child’s behaviour that were considered a risk to others, for instance because of physical or verbal aggression (69.2%); mental health or emotional difficulties (59.1%); and self-harm (52.4%).

The study found that some children had physical or learning disabilities (33.7%), and some were at risk of criminal or sexual exploitation (33.2%). 

The report noted that by the time the DoL application was made, restricting the child’s liberty was “thought to be the only way to manage the risks they were facing” – yet the vast majority of children were already well known to children’s services, having had long-term involvement with children’s social care, the study revealed.

According to data from the Ministry of Justice, between July and September 2022, 46 secure accommodation order applications were made to the family courts – in the same period, there were 348 applications for DoL orders. 

Lisa Harker, director at Nuffield FJO, said: “The level of trauma and adversity that these children have experienced is deeply distressing. They have often been badly let down by the adults around them. It is obvious to all that they need intensive, stable, consistent care provided by highly experienced professionals.

"Yet this study confirms that – due to a dire national shortage of provision – this ‘last resort’ measure is being used to deprive children of their liberty to try to keep them safe, in the absence of the intensive care they so clearly need.

“Improving provision for this group of children is an urgent necessity; it is not only about building new children’s homes for the future, it is about urgently meeting the needs of children today. It will require a nationwide strategy, with significant commitment at a local and national level, led by national government. We know that a wide range of professionals, including senior members of the judiciary, have been actively and consistently calling for action to address the gross lack of suitable provision.”

A Government spokesperson said: “Every young person in care deserves to live in accommodation that meets their needs and keeps them safe – and there is clear guidance to enable Ofsted regulation in the rare and serious cases where deprivation of liberty is authorised in an unregistered setting.

“Our recently published long-term strategy to fix children’s social care is backed by £200 million over the next two years to address urgent issues and lay the foundations for wider-reaching reform across the whole system. 

“We are also supporting local authorities with a £259 million investment programme in the secure and open children’s homes estate, creating approximately 400 new placements in the medium term.”

Lottie Winson