Family President announces revised national listing protocol for applications that seek deprivation of liberty orders for children

The President of the Family Division, Sir Andrew McFarlane, has announced that the organisation and listing of Deprivation of Liberty (DoL) orders relating to children under the inherent jurisdiction is being revised.

This follows the conclusion of the National Deprivation of Liberty Court’s one year pilot in July 2023.

It has been revealed that following an “extensive consultation” with judges and other stakeholders, the National DoL Court will no longer operate under that title.

In future, all initial applications will be dealt with as part of the National DoL List (“NDL”) which will continue to be overseen as part of the work of the Family Division, the Sir Andrew announced.

The National DoL Court was set up by the Family President to improve the process for considering applications for under 18’s to be deprived of their liberty under the inherent jurisdiction of the High Court.

According to data collected by Nuffield Family Justice Observatory (NFJO), the court received a total of 1,389 applications in the 12 months since its launch in July 2022.

The Family President noted that experience over the last 12 months has shown that Fridays are particularly difficult days for the Listing Team at the RCJ.

He said: “Every effort must be made to avoid issuing urgent applications on a Friday. Unless the matter is one of exceptional urgency, first applications for a DoL order must be made between Monday and Thursday.”

Under the revised protocol, applications listed in the NDL will be dealt with by a NDL judge who will be either a Judge of the Family Division or a s.9 Deputy Judge of the High Court.

Turning to the issue of Allocation, the Family President said the expectation will be that, where there are, or will be, parallel public law proceedings concerning the same child/young person and/or where there has been prior judicial involvement at a local level, the case will be sent back to the local court for further reviews.

“This should ensure a much greater level of judicial continuity than is achieved presently where specific permission is required to release a case back to the local court of origin”, he added.

Outlining what the local authority needs to do when issuing the application, he noted that “all efforts must be made to make the application in a timely manner”. It was specified that the local authority’s statement must cover:

• the child’s background;
• whether there are related care proceedings – ongoing, to be issued or completed;
• details of the proposed placement including background to both provider and property, staffing, training and whether regulated or unregulated;
• education plan;
• CAMHS or other NHS involvement and services;
• proposed contact arrangements.

In regard to the Interrelationship with the Court of Protection, McFarlane noted that if the child or young person is 16 or 17 years old and there is reason to believe they may lack capacity and would be likely to be transferred to the Court of Protection at the age of 18 years, then the court should transfer the case to the Court of Protection in accordance with the guidelines.

Last month, the Family President published updated guidance on the Court’s approach to unregistered placements for children and young people.

The September 2023 Guidance replaces the 2019 Practice Guidance, which sets out the steps that judges were encouraged to take in respect of establishing whether a placement was registered, and if not, in the process towards registration.

Lottie Winson