Deprivation of liberty cases in children’s services are “a storm waiting to happen”, delegates at the national social services conference in Manchester heard yesterday.
Charlotte Ramsden, chair of the Association of Director of Children’s Services health, care and additional needs policy committee, said not “nearly enough” had been done to support practitioners for handling cases that may constitute deprivation of liberty in care and require authorisation by the courts.
Inform Children subscribers can view this guide to learn more about the implications of case law and the factors to take into account when considering whether an older child is being deprived of their liberty.
She said recent court rulings highlighted the need for children’s services to get to grips with these cases, and learn from the way adults’ services have raised awareness around the Mental Capacity Act and deprivation of liberty issues.
She said: “I think we are making very principled decisions for children and young people, in partnership with the people who need to be there. That includes, where appropriate, parents.
“But I don’t think we are testing enough whether we are applying the law around the [deprivation of liberty] issue in the way that we should do.”
Court rulings
Ramsden, who is Salford council’s director of children’s services, pointed out that in cases where there are mental capacity issues, children’s services had in the past always been able to rely on parental responsibility or the responsibility held through the local authority to make decisions. However, recent court rulings meant the “tide is changing”, she added.
Two court rulings in the past 18 months have had profound implications for children’s services. The first, Re AB (A child: deprivation of liberty), ruled that a local authority cannot consent to the deprivation of liberty of a child in its care. The second, Birmingham and D, ruled that parents are not able to consent to the deprivation of liberty of 16 or 17-year-olds.
On the second judgment, Ramsden said: “We have always used parents and parental responsibility as a way to determine what’s right for children in those circumstances – this judgement is saying that that is not necessarily okay. This could lead to a significant number of court applications.”
Practical considerations
Cases meeting the deprivation of liberty threshold involving children under 16 must be authorised under the inherent jurisdiction of the High Court. For those aged 16 or 17, councils must apply to the Court of Protection.
Lee Calvert, manager for MCA and DoLS at Cheshire West council, told delegates that the court work undertaken by children’s social workers when seeking care orders meant they were better prepared to deal with deprivation of liberty cases than they might think.
“You’ve already got all the evidence you need – because for you to go to court in the first place and get a care order for a 10-year-old, you have to have a big line of reasons as to why it’s the right thing to do already authorised by a judge,” he said.
“If that judge has also already got a high court ticket when you make an initial application say, ‘oh by the way, can you authorise a deprivation of liberty’ – if they haven’t and you’ve already got cases like that, then you need to make separate applications for those people.
“So those are the very nitty gritty, practical considerations to think about.”
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Very interesting article thank you.
I noted this in the Birmingham and D judgement :-
The issue of the resource implications is a matter for the local authority and, ultimately, the Government; it is not, should not and, in my judgment, cannot be a relevant consideration for this court.
The protection of the human rights of those with disabilities or the vulnerable members of our society, most especially in respect of the protection afforded by Article 5 (1), is too important and fundamental to be sacrificed on the altar of resources.
Given very high numbers of children in care with LD, ASD, ADHD etc. I hope all are taking note
Who decides that a young person has a mental capacity issue?
Many looked after children have will have emotional issues that would impact their ability to make their own judgements with regard to their safety e.g. risky sexual behaviour and it’s links with CSE
As a foster carer working with teenagers we are often asked to restrict the liberty of YPs – is the guidance different for those over 16 from those under 16?
Social workers often do not seem to have enough regard to DoL issues
It would make sense for 16 and 17 year olds to fall within the DoLS regime as they do for MHA. It will be much less of a storm if the Law Commission changes allow the local SB structure to be allowed for young people. If all cases have to go to the courts, that will certainly be a new, unfunded and unnecessary requirement for most cases.
As I understand it, the young people and their parents in these test cases are happy with arrangements. Hypothetically fast forward a few years – there are new commissioners who do not know the young person, the parents are encouraged to be less involved when the reaches 16, the therapeutic regime in the unit changes to one that involves more chemical restraint – all approved by the institution’s clinician. I’m afraid this is why, in the past, children entered these institutions and get picked up decades later when someone sets out to count numbers of people like this in different institutions under different arrangements up and down the country. All paid for by the taxpayer.
Ken, my belief (and it is just that!) is that locking a young person in is like smacking them – it is never going to turn out as you want !.
These are some good resources – http://arcuk.org.uk/blog/helping-each-other-training-materials/
and something to think about – when vulnerable children are ‘groomed’ -what do the groomers give the child that the rest of the adults in the child’s life do’nt? – Is it that they are made to feel as if they matter, are accepted and loved and they begin to trust, with dreadful consequences.
I think that if you don’t know where a child in your care is, you should call the police and you should warn the child that you have to do this each and every time, because what they are doing is not safe and because you care. Should’ent the local safeguarding board be giving advice or help with this or am I being naive?