Call for greater transparency over children deprived of their liberty

The children’s commissioner has joined a chorus of judicial voices in raising concern over children being placed in “quasi-secure” accommodation for their own welfare, because of the national shortage of government-approved beds.

In a new report examining the detention of young people in secure children’s homes and across the mental health and youth justice systems, Anne Longfield warned of “invisible children” being deprived of their liberty without showing up in official statistics.

Data submitted by Cafcass to the children’s commissioner’s office revealed that in 2017-18 122 children had been subject to applications for deprivation of liberty authorisations within the family courts.

A further 89 16-to-18-year-olds were on applications in the Court of Protection during the same financial year, Ministry of Justice information revealed.

It was unclear from the research whether all these young people had in fact ended up losing their liberty and for how long.

‘No assurances about accommodation suitability’

A string of recent court judgments have drawn attention to extreme difficulties councils have had finding appropriate secure accommodation for children likely to suffer significant harm without it.

These include teenagers at risk of sexual or criminal exploitation.

Last autumn, Judge Mary Lazarus described the approved secure accommodation system as a “distorted sellers’ market” after no suitable placement could be found for a mentally unwell 16-year-old involved in ‘county lines’ gang activity.

According to Ofsted there are 135 secure children’s home beds, which must be approved by the secretary of state for education, across England and Wales. But the children’s commissioner’s report quoted the Department for Education as saying that as of March 2018, just 100 were actually available.

The report observed that judges, including Lazarus, had expressed unease that when beds were unavailable, councils were instead having to apply for deprivation of liberty authorisation from the High Court to place children in non-approved, off-the-radar settings.

“It is very concerning that children who meet all the criteria for being detained in a secure children’s home are in fact being sent to alternative placements, sometimes described as ‘quasi-secure’ homes,” it said.

“This is not a legal category of children’s home, and the court process itself does not provide any assurances about the suitability of the accommodation,” the report added. “These homes therefore cannot provide the high level of supervision children need, or are providing it without officially being approved to do so.”

Among a series of recommendations, the report called for local authorities to provide information as to how many children in their area were being deprived of their liberty at any one time and the legal basis for their detention. This data should be routinely submitted to the children’s commissioner’s office, Ofsted and the Care Quality Commission (CQC), the report said.

It also said councils should publish statistics on how long children have had to wait to access a bed in approved secure accommodation.

‘Profound unease’

The report’s comments on secure children’s homes echoed a speech given a few days earlier by Sir Andrew McFarlane, the family courts president and one of the judges to have sounded the alarm about the breakdown of the statutory system.

McFarlane’s Nicholas Wall Memorial Lecture was mostly devoted to the enduring merits of the 1989 Children Act and its flexibility to changing contexts, including in helping to protect children being criminally exploited outside of their family home.

But, he said: “It is, unfortunately, necessary to change from a positive tone to a less positive one when considering the ability of the 1989 legislation to encompass the needs of young people who may require to be accommodated in circumstances where their liberty is restricted.”

McFarlane added that “normally, and almost inevitably, the bespoke accommodation identified by social services will not be in an approved children’s home, let alone approved secure accommodation”.

The law makes no specific provision for authorising such placements – which had increased “exponentially” of late – for under-16s, McFarlane noted. But faced with having to protect extremely vulnerable young people, the family courts were most commonly deploying the ‘inherent jurisdiction’ of the High Court in order to approve them.

“I have a profound unease over the court frequently being asked to approve the accommodation of children when it has no means of checking or auditing the suitability of the facility,” McFarlane said, while acknowledging that there was no legal basis to question the family courts’ jurisdiction to do so.

McFarlane said that he would be issuing practice guidance to the courts on the issue before the end of July 2019, with a view to seeing if more such placement settings could be brought within the statutory estate.