Judge refuses to make deprivation of liberty order where local authority feared termination of placement if none made

A judge has refused a local authority’s application for authorisation of arrangements which have resulted in a teenage girl being deprived of her liberty whilst residing at a children's home.

In CC (A Child), Re [2023] EWHC 2179 (Fam) (29 August 2023), Mr David Lock KC, sitting as a Deputy High Court judge, concluded: “I do not accept that the restrictions are objectively justified measured against the risks to CC from living without the restrictions, and the fact that she lives without the restrictions at the weekends.”

The judge said a London borough had applied for authorisation of arrangements which have resulted in CC, a 15-year-old girl, being deprived of her liberty whilst she is residing at an Ofsted registered children's home (“the placement”) located in a rural area some distance out of London.

The application was opposed by CC's mother and her Guardian, who submitted that there was no justification for depriving CC of her liberty whilst she is placed in the children’s home and that the only reason that the local authority was seeking the order was the concern that, absent an order, notice might be given to terminate the placement.

The judge, David Lock KC, was told by the council that if it it failed to secure a Deprivation of Liberty Safeguards (DOLS) order, it was fearful that the operator of the placement would be minded to serve notice to terminate the placement.

The judge noted that the local authority sought approval from the court for the following specific restrictions to be applied to CC:

i) CC should be supervised by staff from the Placement at all times, with staff following her and keeping her in their line of sight should CC decide to leave the Placement without permission, or without staff. In the event CC were to leave without supervision or permission, efforts would be made to encourage her to return to the Placement and to support her on a one-to-one basis. In the event this is unsuccessful, police and the local authority would be notified;

ii) When leaving the Placement for planned activities, CC will always be accompanied by a member of staff;

iii) The doors to the Placement are to remain locked to CC at all times. CCTV is used in connection with the accommodation and contributes towards the ongoing supervision of those who are living at the Placement;

iv) CC is not to have access to the internet on any devices; and

v) Trained staff at the Placement are entitled, as a last resort, to use reasonable force to prevent CC self-harming or harming others.

The judge outlined the unusual nature of the case, saying that “the restrictions that the Local Authority are seeking with respect to CC do not, in practice, apply (a) for the whole of CC's week or (b) to all of the other residents at the Placement or (c) are actually enforced by the Placement staff at the moment”.

He noted that the local authority had set up a regime where CC is allowed to leave the Placement to spend weekends in London.

“Although her foster care placement broke down, she has returned to London for regular weekends to live with her former foster parents and has spent at least one weekend with her aunt. During these periods in London, the Local Authority has not made any arrangements for CC to be supervised by any member of the Placement staff or other care staff engaged by the Local Authority”, he added.

Outlining the factual background, Judge Lock said CC was made the subject of an interim care order on 8 August 2022, along with her siblings.

CC was initially placed with her maternal grandmother and her husband. On 13 March 2023, CC moved to a new foster placement, however, this came to an end.

On 21 April 2023, CC moved to a further foster placement. The carer shared her concerns with local authority staff about the high level of care and support she felt that CC needed and ultimately gave notice to end the placement on 17 May 2023.

The local authority decided that a residential placement would be more appropriate for CC and looked for a placement that would provide “a package of support to promote positive mental health, education, and a more therapeutic and nurturing approach”, the judge added.

CC moved to the placement on 14 June 2023. Judge Lock said: “Unfortunately, the evidence makes it very clear that CC is hugely resistant to staying at the placement and has repeatedly said that she does not want to remain there. She has expressed her continuing opposition to staying at the placement in a variety of ways and, I have no doubt, feels that she is effectively imprisoned there against her will.”

When CC arrived at the placement the staff conducted a risk assessment. The risks were divided into Major, High, Medium and Low. No "major" risks were identified.

On this, the judge said: “The lack of any identified major risk, of itself, appears to me to be of some significance.”

A single "High” risk was identified, Child Sexual Exploitation, “CSE”. The main evidence relied upon by the local authority to show that CC was at risk of being subjected to CSE was that CC has exchanged nude photographs of herself over social media with someone she claimed to be her boyfriend, and also that he sent a photo in response, noted the judge.

Judge Lock questioned whether, absent any further indicators, these exchanges of pictures provided any proper evidential basis for saying that CC was at a "high" risk of CSE.

He said: “I accept, of course, that any vulnerable 15 year old girl who wants to explore her own sexuality is potentially at risk of CSE. That may be a particular concern for those supervising children in care. However, in my judgment there is insufficient evidence in this case that CC is at any greater risk from CSE than 15 year old girls generally and certainly no more than the vast majority of other children in care.”

The Deputy High Court judge added: “I seriously question whether staff at the Placement and at the Local Authority can have properly come to the conclusion that CC's vulnerabilities mean that she was at any serious level of risk of CSE, because it seems to me that the time that she would be exposed to by far the highest level of risk would be when she returned to her family or foster carers for unsupervised weekends in London.”

The second area of justification for the restrictions imposed on CC was based on a concern that CC had expressed a desire to leave the placement. On this, the judge said: “I cannot see that there is evidence that the risks to which CC has been exposed to date when she has briefly absconded come anywhere near justifying locking her into the Placement.”

The next matter relied upon by the local authority was the fact that CC had been involved in confrontations in the past and may have upset people enough to threaten her with violence.

The judge concluded that if CC was at any level of risk of violence due to people who she associated with prior to coming to the placement, “it must follow that the level of risk to which she is exposed would be far higher when she returned to her family and friends in London for the weekend as opposed to when she was in an isolated placement in a rural area”.

Judge Lock said: “Given the unjustifiable inconsistencies between the approach taken by the Local Authority to the management of risks for CC at the weekend and during the week, I cannot accept that the Local Authority established an arguable case that the risks to CC's welfare justify a deprivation of liberty for her at the Placement.

“It follows, in my judgment, the real issue in this case is whether it is justifiable for the court to make a deprivation of liberty order in a case where the risks to the child from not having restrictions in place have not been objectively justified but where the only real justification for the order is that the Placement is believed by the corporate parent to be in the best interests of the child and the Placement operator will not continue the Placement unless a DOLS order is in place.”

The judge noted that the order that the local authority sought would authorise CC being kept in conditions “which mirror those of children who are kept in section 25 CA secure accommodation but without the statutory protective framework which exists for children kept in secure accommodation”.

He added that the local authority had never, as far as he was aware, explored the option of section 25 accommodation for CC.

Judge Lock said: “I do not accept that, even in the present market where there is an appalling shortage of regulated placements, it can be right for a provider to be able to insist that a child is deprived of their liberty as a condition of accepting or continuing to accommodate the child unless an objective analysis of the facts shows that (a) the child meets the conditions in section 25 CA and (b) the Local Authority has sought section 25 accommodation and it is not available or has good therapeutic reasons for not wishing to use section 25 accommodation for the particular child.

“In any event, I also consider that the Local Authority have failed to establish a case that continuing to deprive CC of her liberty at the Placement is in her best interests. […] It seems entirely possible that [the placement operator] will accept that it is not objectively justifiable for it to insist on operating a regime at the Placement which deprives CC of her liberty and thus it will continue the Placement without locking CC into the premises. [..] It is also possible that [the placement operator] will seek to terminate the Placement and the Local Authority will have to look for an alternative placement for CC which has restrictions on her liberty but does not go so far as to involve depriving her of her liberty.”

He added: “It is unclear what other options may exist but I note that CC does not wish to stay at the Placement and, in coming to any view about her best interests, I have to take her views into account.”

Dismissing the local authority’s application, the Deputy High Court judge said: “Given the absence of evidence about the alternatives and CC's opposition to the placement and the lack of objective justification for the restrictions on CC's liberty, I cannot reach the view that remaining under these restrictions is in CC's best interests.

“I have therefore concluded for the reasons set out above that I will accept the submissions of the Guardian and the Mother and will not order any form of interim relief.”

He added that it was for the local authority and the placement operator to decide whether to continue to apply for a DOLS order in accordance with the directions made, or whether to discontinue the application.

Lottie Winson