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Secure placements for vulnerable children: Note on the recent judgment of The President of the Family Division

27 April 2023

On 25 January 2023 Sir Andrew McFarlane, the President of the Family Division, delivered a scathing judgment in the case of Re X (Secure Accommodation: Lack of Provision) [2023] EWHC 129 (Fam). The judgment was delivered in private but, due to its public importance, the President (the most senior judge in the Family Division) gave leave for an anonymised version to be published.

In his judgment the President castigated the Education Secretary, Gillian Keegan, over the lack of secure places for vulnerable children at risk of serious harm, accusing her of “complacency bordering on cynicism”.

What was the case about?

The case concerned a 15 year old girl (referred to in the judgment as “X”, to protect her identity), in the care of a local authority, who had experienced significant trauma and adversity in her childhood. She had a history of absconding, self-harm, aggressive and threatening behaviour to herself and others and had spoken of suicide. X had been assessed as having a low IQ, autism and ADHD, and had experienced sexual abuse. The combined efforts of social workers, police officers, hospital security and medical staff had been insufficient to contain her behaviour or meet her complex needs.

It was apparent that X was in urgent need of a placement in secure accommodation. The problem was (and still is) that there is a dearth of regulated secure placements available to local authorities, who have a statutory duty to accommodate vulnerable children, like X, who require constant supervision.

In November 2022, X’s social worker explained in her statement to the court that there were 72 pending referrals for secure placements in England and Wales but only two available places, which places were suitable for males only. This meant that there was no suitable secure placement available for X.

In view of the lack of secure provision for children in England and Wales they may be sent to placements in Scotland, far away from their families, or placed in a series of unregulated placements in the community (as X had been placed, and from which she absconded, had a number of sexual encounters with older males, and self-harmed), or made to wait for weeks, or sometimes months, on general hospital wards, where their condition frequently deteriorates.

In 2019 and 2020 Anne Longfield, the then Children’s Commissioner for England, published reports on children living in secure accommodation. Her reports also highlighted the plight of the “invisible children”, the growing number of whom “do not appear in any official statistics and are not living in places designed to hold children securely ..”

This situation has led to the practice of local authorities, unable to find secure children’s home placements for such children, making applications under the inherent jurisdiction of the High Court to authorise Deprivation of Liberty placements (“DOLs”) in alternative accommodation, not appropriate to meet the young person’s needs, but chosen as being the “least worse” and often only available option.

Statistics are still being collated but it is estimated that there may be more than 1,000 such DOLs applications issued in the High Court of the Family Division every year, most of which are heard in London.

As the President noted in his judgment, once cases like this have been transferred to the High Court “and the judge has sought to bring pressure to bear on the authorities”, a secure placement is very often found for the child. This is what happened to X - in December 2022, a place in a secure unit in Scotland was found for her - although, given the geographical distance from her family, this was far from being the best outcome for her.

What was the main purpose of the judgment?

The President explained that the primary purpose of his excoriating judgment was “to draw public attention to the very substantial deficit that exists nationally in the provision of facilities for the secure accommodation of [vulnerable] children..” and he stressed that, for more than 6 years, very senior Family Division judges “have.. been consistently calling for Parliament and government to acknowledge the need for action..” to address the issue.

The President made it clear that the lack of secure placements for vulnerable children with complex needs is “long-standing and chronic” and that it is the Government’s responsibility to ensure that local authorities have the resources to fulfil their statutory obligations. He said it was “scandalous” that when a court ordered secure accommodation for a child’s safety there was no assurance that such a placement would be found. Furthermore he rejected the stance taken by the Education Secretary, Gillian Keegan, that the provision of secure accommodation was the responsibility of local authorities (and not of the Education Secretary), which he said “displayed a level of complacency bordering on cynicism”.

Ms Keegan had asked to be excused from the court’s direction to attend court by counsel. However the President refused her request. The Education Secretary subsequently instructed counsel and adopted a more considered and conciliatory approach, accepting that there are significant problems caused by the insufficient number of secure placements and that the situation ”requires action by (the) Government …to support local authorities to meet their statutory duties,” including capital investment to create secure units, in London and the West Midlands (where there are none at present).

As the President said, at the end of his judgment: “It is to be hoped that this marked change” (in the Government’s attitude).. “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.”

This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Maeve O’Higgins or write to us using the contact form below.

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