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.”
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.”
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.”