Children are in ‘extreme crisis’: top judge berates DfE’s six-year failure to tackle ‘gross’ lack of secure units

    Family court president welcomes apparent government shift in recognising responsibility to address situation in which 60-70 children are waiting each day for a secure placement

    Image of Sir Andrew McFarlane, president of the family division of the High Court
    Sir Andrew McFarlane, president of the family division of the High Court

    A leading judge has excoriated the government and Parliament for a six-year failure to address judicial warnings about a chronic shortage of secure care for children “in extreme crisis”.

    However, Sir Andrew McFarlane has detected signs of hope in an apparent shift in Department for Education (DfE) thinking to accept its responsibility for filling a gap that has seen 60-70 children waiting for a secure bed each day.

    Last week, the president of the family division of the High Court issued the latest in a string of judgments, dating back to 2017, in which judges have severely criticised the lack of places for children on secure accommodation orders.

    Under section 25 of the Children Act 1989, such secure welfare placements may only be made if a child either has a history of absconding, would likely abscond from any other setting and, if they did so, would likely suffer significant harm; or would likely injure themselves or others if placed in any other setting.

    The number of welfare placements in England and Wales’s 14 secure homes has declined from 105 in 2016 to 82 in 2022, during which time the overall occupancy rate – including criminal justice and remand placements – has fallen from 83% to 66%. However, research has found that the occupancy rate was a poor guide to capacity because children’s needs have grown more complex, meaning some require staffing resources equivalent to multiple beds.

    Councils reliant on ‘inappropriate’ unregistered placements

    In many cases, the shortage has forced judges to issue deprivation of liberty (“DOLS”) orders, using the inherent jurisdiction of the High Court to prevent significant harm where no other legal option exists. These typically involve placement in unregistered settings, which Sir Andrew said were often, “at very significant additional cost”, “not appropriate to meet the young person’s needs” and simply chosen because there were no other options.

    He said this was the case in relation to the subject of the judgment, X, a 15-year-old girl who had suffered significant trauma and adversity during her childhood, and was assessed as having low IQ and diagnosed with high-functioning autism and attention deficit hyperactivity disorder (ADHD).

    Case chronology

    • November 2020: X was taken into the care of an unnamed English local authority, under section 20 of the Children Act, after several incidents of absconding from home and assaulting family members.
    • March 2021: She was detained by police under section 136 of the Mental Health Act 1983 (MHA) after attempting to jump off a roof at school, and, while on the ward, repeatedly self-harmed, tried to abscond and threatened staff.
    • April 2021: She was placed under a secure accommodation order, in a secure unit in Scotland, under a one-to-one staffing ratio and with overnight checks every five minutes in case of self-harm. English councils are increasingly placing children in secure care in Scotland due to the shortage of places south of the border.
    • April 2022: X was placed on a full care order by the local authority after the secure order came to an end, on the grounds that its criteria were no longer met. She was placed in a residential placement but this broke down within a month because of repeated incidents of self-harm and harm to others.
    • May 2022: After being detained for assessment under the MHA, where it was deemed she did not have a mental disorder requiring hospital treatment, she was discharged to a series of unregistered community placements under High Court DOLS orders. The terms of the first order prescribed an up to 4:1 staffing ratio, checks at night every 20 minutes and a mobile phone and internet ban and allowed for reasonable and proportionate restraint by staff.
    • May-October 2022: X absconded four times from the community placements, during which time she had sexual contact with older men, self-harmed and threatened staff.
    • October 2022: She moved to another community placement under a DOLS order, where staff reported several more incidents of self-harm and threats to staff, and she was detained again under the MHA after absconding.
    • November 2022: The case returned to the High Court and X was placed on a secure accommodation order. Shortly afterwards, her social worker reported that there were 72 live referrals for secure placements in England and Wales, with just two beds available, both of which were reserved for boys.
    • December 2022: Following two High Court hearings, presided over by Sir Andrew McFarlane, to help identify a placement, X was placed in a secure unit in Scotland again.

    Children ‘in extreme crisis’

    Sir Andrew said that, for judges in the family court, the “extreme behaviour” demonstrated by X was not unusual, adding: “There is a
    cohort of young people who are in extreme crisis to the same degree as X.”

    While he said there were 60 to 70 children on a secure accommodation order who were waiting for a bed, this was likely to underestimate the scale of the problem as many councils will have applied to the High Court for a DOLS order.

    Sir Andrew set up a specific DOLS court last year to manage these applications, with the Nuffield Family Justice Observatory contracted to monitor data on them. From July to November, 552 children were subject to DOLS applications, and the president said there may be over 1,000 applications during the whole year, about ten times the number in 2017-18.

    In response to a direction to attend the first hearing before Sir Andrew in X’s case, in November 2022, the DfE had initially asked to be excused on grounds of cost. It sent a letter to the court stating that councils, not the department, were responsible for care placements and had a duty to ensure sufficient accommodation for looked-after children, and that it was supporting them by committing £259m to increase open and secure children’s home capacity from 2022-25.

    ‘Complacency bordering on cynicism’

    However, Sir Andrew insisted on a DfE representative attending the November hearing, in which the judge said that its stance, that the shortage of placements was “not its problem…displayed a level of complacency bordering on cynicism”.

    “It was, I observed, shocking to see that the Department for Education seemed to be simply washing its hands of this chronic problem,” he added. “It must, I observed, surely be for central government to monitor and, if necessary, get a grip upon what is a long-standing national problem.”

    Subsequently, on request, the DfE submitted a further statement, which acknowledged there were “significant problems with the availability of sufficient placements” – particularly for children with complex needs – that required action across government to help councils meet their statutory duties.

    This included the £259m investment, which it said would create new secure children’s homes in London and the West Midlands, where there was currently no provision, as well as action to tackle gaps in NHS provision for children with complex needs and emotional and behavioural issues. It also pointed to the forthcoming DfE response to the Independent Review of Children’s Social Care, highlighting its recommendation that 20 regional care co-operatives take over commissioning of children’s care placements, though without committing to a government view on this.

    ‘Most welcome’ statement from DfE

    In the conclusion to his judgment, Sir Andrew said the “gross lack of secure accommodation” would not be effectively addressed “until urgent and effective action is taken by government and Parliament to discharge the obligation that is on the State to protect the country’s most vulnerable children”.

    He said the “most welcome” statement from the DfE represented, “it would seem for the first time, an acceptance by the Secretary of State for Education that, nationally, there are significant problems with the availability of sufficient placements” that require government action to address.

    Sir Andrew said he hoped it would result in action and that “the need for the court to hand down judgments of this nature will be a thing of the past”.

    Situation ‘not sustainable for children or councils’

    ADCS president Steve Crocker

    ADCS president Steve Crocker (credit: ADCS)

    In response to the judgment, Association of Directors of Children’s Services president Steve Crocker also welcomed the DfE statement.

    He added: “Many local authorities report major difficulties in sourcing a secure children’s home placement…In these instances, local authorities have no other option but to create a highly bespoke placement in the community with intensive wraparound support, while suitable alternatives are sought, costing tens of thousands of pounds per week and requiring court authorisation.  This is not a sustainable solution for children or local authorities.”

    Crocker said he hoped the government’s response to the care review “will include meaningful solutions to the placement shortage crisis we are currently facing”.

    Claire Coutinho

    Claire Coutinho (photo: HM Government)

    In her response, children’s minister Claire Coutinho said the cases highlighted in the judgment emphasised “the urgent need for reform in the care system”, and that its response to the care review, and accompanying implementation plan, would be published “imminently”.

    “It will be the first step towards implementing our long-term plan, which ensure all children have the support and protection they need, creating the stable and loving home that every child deserves,” she said. “I am committed to working with the judiciary and other partners on bettering outcomes for vulnerable children and ensuring we have robust early intervention and support, as well as the right level of children’s social care placements.”

    The DfE said that the £259m in children’s homes would result in an about 50 additional secure places over the medium term.

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    3 Responses to Children are in ‘extreme crisis’: top judge berates DfE’s six-year failure to tackle ‘gross’ lack of secure units

    1. Alec Fraher February 22, 2023 at 12:02 am #

      Warehousing Children, eh! When the methods of sense-making children’s services are drawn from a machine model what else does one expect?

      Sir Andrew MacFarlane must also examine the broader shifts law towards American Legalism. And especially the role commercial providers play in writing Amicus Curiae. The increased narrowing of legal concepts relating to a duty of care appears to limit the risks of redress through the law of tort. Cash strapped Councils are creating the conditions within which harm is caused. The removal of responsibilities for Children In Need, as the Review suggests, is a step backwards where do they think s25 secured children come from?

      The pattern of thinking underpinning this Review is panic stricken and based in dualistic thought, well meaning as it maybe, when the very method of thinking is flawed one expects a certain level of direction from law. Maybe, as with the Mental Health Act a Children’s Act Commission merits the attention of the Judiciary.

    2. Alec Fraher February 22, 2023 at 12:33 am #

      After Thought:

      Q: How did the Outsourcing and Deregulation of Contracting Act 1994 find its way into the face of the Children Act 2004 and the Working Together Guidance, as it did for adults in the Care Act 2014?

      Detailed legal attention is missing. Public scrutiny is missing.

      The Information Commissioner has failed to recognise the importance of how Councils obligations for Information Management Requirements are massively diluted by Third Party Commissioned services. Choosing instead to follow rather spurious narrowly conceived and conceptually driven notions of what ‘to hold’ means. It’s completely bonkers. It’s also very unsafe.

      Here’s the rub. The Office of the Chancellor of the Dutchy holds the competency for Information Management Requirements for Public Authorities. While the SofS for DofE holds the competency for children’s services. Neverthetwain shall meet. Unless, of course, they are brought to task for legal illiteracy.

      Just saying.


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