Judge: bespoke placements for children will be ‘considerably harder’ following unregulated provision ban

By Rob Preston and Mithran Samuel

The forthcoming ban on placing children in care aged under 16 in unregulated accommodation will make it ‘considerably harder’ to find bespoke placements for young people with urgent needs.

That was the warning from a High Court judge last month as she authorised such a placement for a 15-year-old girl experiencing “significant psychological and emotional distress”, before the ban comes into force on 9 September.

Mrs Justice Knowles asked for the case to return to court in mid-September so she could consider whether the placement could continue to be authorised under the inherent jurisdiction of the High Court despite the ban.

The girl, known as W, who has a history of significant self-harm and behavioural issues linked to past trauma, is deprived of her liberty in temporary accommodation with an agency providing care and – if necessary for her safety – restraint.

Though the agency is registered with the Care Quality Commission, the judge said it was likely that the arrangement needed to be registered as a children’s home with Ofsted because it constituted providing accommodation with care.

It is illegal not to register as a children’s home in such circumstances. However, in July, the Supreme Court ruled, in Re T, that the inherent jurisdiction could be used to authorise an unregistered placement despite this.

In the latest judgment, Mrs Justice Knowles said that W’s placement would not just be “potentially illegal” but “unlawful”, when the ban on unregulated provision for under-16s comes into force.

“Whether the inherent jurisdiction can fill the placement gap in W’s case once the 2021 Amendment Regulations come into force will be a matter for more detailed argument and consideration at the next hearing before me,” she said.

‘Child would not benefit from institutional setting’

Currently, councils can place looked-after children of any age in unregulated placements -‘independent’ and ‘semi-independent’ settings that do not have to register as children’s homes because they do not provide ‘care’.

Banning such placements for under-16s are part of the Department for Education’s answer to shocking stories of young people being placed in caravans, barges, tents or other inappropriate settings.

However, children’s organisations are campaigning vigorously against the reform on the grounds that it excludes 16- and 17-year-olds, leaving them vulnerable to inappropriate provision. Children’s rights charity Article 39 has been given permission to challenge the ban in the courts.

But local authorities have raised concerns that the ban will make it more difficult for them to arrange bespoke placements for children with very specific needs, a warning echoed by Mrs Justice Knowles.

“Whilst there are obvious concerns about placing children in unregistered accommodation, it will be immediately apparent that finding or creating a bespoke placement for a young person who urgently needs care will be considerably harder following 9 September 2021.”

While the government is increasing funding to build children’s homes to address “a paucity of provision”, she said W was a young person who “would not benefit from such an institutional setting” and could not be placed in foster care because of the extent of her needs.

She said the local authority in W’s case doubted that her placement would be lawful after the ban came into force.

It planned to search “the already inundated system” for a bed in secure accommodation for the girl, while considering whether the current arrangement could be registered as a foster placement. This could involve placing W with a foster carer with the current care agency providing support and, where necessary, restraint, or one of the agency staff being approved as a temporary foster carer.

Before moving to the temporary placement, W had been deprived of her liberty under a court order in a side room of an adult surgical ward in a general hospital. Despite the severity of her needs and being found to be “mentally distressed”, she was found, repeatedly, not to be eligible for detention under the Mental Health Act 1983 because she did not have a mental disorder.

Mrs Justice Knowles said W’s situation also raised the “depressingly familiar scenario” to family court judges of young people missing out on the therapeutic treatment they needed because their emotional and behavioural difficulties were the result of trauma, not a mental health condition.

Given the issues raised by the case, Mrs Justice Knowles invited the education secretary, the Children’s Commissioner for England, Ofsted and the CQC to be represented at the next hearing.

An Ofsted spokesperson said: “We have been invited to the court hearing. It would be inappropriate for us to comment further at this time.”