Another unregulated placement: A Borough Council and E (Unavailability of a Regulated Placement) [2021] EWHC 183

This case involved E, who is nearly 16 years old. E lived with both parents and her siblings. The family were known to the Local Authority since 2017 due to alleged domestic abuse between the parents. When E started secondary school, she presented with selective mutism.

On 2 March 2020, E made an allegation that her father had shown her pornographic images, had purchased condoms for her and asked her to touch him sexually [5]. The police investigated and E and her siblings went to live with maternal grandmother. E later told the social worker she had fabricated these allegations and the children retuned to the family home. The police also removed Father’s bail conditions.

In July 2020, E alleged to her school that Father had sexually abused her from the age of 12. Again, the police investigated. E was accommodated pursuant to Section 20 of the Children Act. The police took no further action due to evidential difficulties.

Following E being accommodated, her behaviour deteriorated significantly. She experienced many placement breakdowns, missing episodes, self-harming episodes and was alleging that she was using illicit drugs.

In November 2020 she attempted suicide by overdosing on paracetamol. E stated later on in November 2020 that she had done this again and was admitted again to hospital.

The Court granted an ICO at the beginning of December 2020 and unfortunately, the behaviour continued to deteriorate. On 7 January 2021, E jumped from a landing, falling around eight feet. She was admitted to hospital on that day and she remained there until the date of this judgment.

During her time in hospital, E underwent a Mental Health Act 1983 assessment. There was then significant confusion within the hospital trust as to whether E met the criteria for admission under Section 2 of the Mental Health Act 1983. This was clarified on 25 January 2021 before Mr Justice MacDonald and it was definitive that E did not meet the criteria for admission and the Court did not seek to go behind that decision.

The Local Authority therefore found a placement for E. This was an unregulated placement. However, all parties took the same view that this placement was the appropriate way forward. This was for the following reasons [21]:

  1. It wasn’t in E’s best interests to continue to be deprived of her liberty on a hospital ward
  2. The unregulated placement was the only option for E
  3. The placement had made an application to Ofsted, which, if granted, would mean the placement would then become regulated
  4. In the meantime, the Local Authority would deploy measures to ensure E’s welfare and safety
  5. The Court would have continuing oversight of the placement
  6. E had been enthusiastic about the placement and expressed excitement about going.

Mr Justice MacDonald had his reservations. However, he did consider that it was in E’s best interests to authorise her deprivation of liberty at this unregulated placement. He said that ‘the best interests decision can only be based on the narrowest of welfare decisions in circumstances where the court is presented with a fait accompli by reason of there being only one alternative to the continued restrictions of E’s liberty on an NHS hospital ward’ [38].

On that basis, Mr Justice MacDonald therefore made the order authorising a restriction of E’s liberty and listed the matter for a review.

This is yet another case of whether the Court should authorise the deprivation of a child’s liberty in an unregulated placement, an issue which seems to be regularly appearing in the Courts in recent times and thus demonstrating the strain in which the system is under.