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Deprivation Of Liberty Orders - A Reminder Of Key Points

Over recent months I have noticed an increase in Deprivation of Liberty cases coming before the local Court and sadly these involve many young adults being in a mental health crisis. It has become apparent that there are real difficulties in the management of cases such as these with shortages in resources and there are question marks as to the right way to handle cases such as these. The recent case of Re N (A Child) (Deprivation of Liberty Orders) [2025] EWHC 1690 (Fam) sadly is a case where matters were not dealt with properly and provides a helpful reminder of how these cases should be approached (and how they should not)!

The application came before Ms Justice Henke in respect of a young woman N who was 17 years old. The application was made by Tameside MBC for permission to invoke the inherent jurisdiction and, if that were permitted, for an order authorising the local authority to deprive N of her liberty.

Sadly N has experienced significant insecurity and trauma in her life. As a child in the care of her parents she experienced domestic abuse, physical chastisement and parental substance misuse. In 2022 she was made the subject of a care order and placed in residential care. She regularly ran from there, she self-harmed and attempted to take her own life. In late 2022 she was placed in secure accommodation under s.25 of the Children Act 1989 because she was likely to abscond and if she did, would be likely to suffer significant harm. After approximately a year in secure accommodation, she returned to residential care with a court order authorising the deprivation of her liberty being put in place to keep her safe. That placement broke down. She moved again. A further deprivation of liberty order was made to keep her safe in her new placement. That lasted until September 2024. Shortly after its expiry, N moved to a semi-independent placement. She was 17 years old. Initially she appeared to settle, however that did not last for long and a cycle of absconding, self-harming, and attempting to kill herself emerged again and escalated. On 16 October 2024, N was admitted to A&E having cut her arm deeply. By 17 October 2024, there were significant concerns for her mental health. She was assaulting others and acting on her threats to commit suicide. Another order was made depriving her of her liberty to keep her safe. That order ran from 30 October 24 until 15 November 2024. The order was not extended further because the local authority considered that progress was being made with N's mental health. There was a period of about two weeks when N was again regarded as stable before the pattern of absconding, self-harming, and attempting suicide came to the fore again. On 4 February 225 she was taken to hospital by the police under s.136 of the Mental Health Act 1983. She had taken 32 paracetamol tablets. She was discharged back to the placement from which she absconded. On 9 February 2025 she attended A&E seeking help for her mental health. She was self- reporting that she was banging her head against a wall to "make it all go away". She left hospital. Later the same day she was found on a beach contemplating taking her own life. Again, she was taken to hospital by the police under s.136 of the Mental Health Act 1983 for assessment. She was discharged from the hospital and returned to her placement. By this time her placement had changed. It was now a therapeutic CQC registered provision which provides specialist care to young people, particularly around their mental health. N was being supported at a 2:1 staffing ratio. By reason of her behaviours, the placement provider had already served notice in January 2025. They were only prepared for her to remain with them whilst the local authority searched for another placement for her. Such placements are in high demand and the local authority could not find an alternative provision for her. Against that background, matters came to a head on 11 February 2025 when the provider served immediate notice. Given the events of the recent days, they considered that they were "unable to keep N alive". They were no longer willing and, they would say, able to provide her with a placement. At the time of the application by the LA, N was correctly described within the papers as being in a state of repeat and repeating crisis.

History of the proceedings

At the time of the application on 11th February, the hospital indicated that they were currently assessing N's mental health but were likely to discharge her that day. However, there was no placement to which she could be discharged as the local authority had no safe space to accommodate her. Accordingly, the Judge adjourned the hearing to 4.30pm the same day to enable the hospital to complete its mental health assessment and the local authority to hopefully find a placement for her. That hope did not come to fruition. Paragraph 10 of the order of 11 February 2025 stated: "In the event a solution could not be found overnight, the matter would need to be dealt with by an out of hours judge". There was no solution found, and no hearing was pursued by the local authority or any hospital Trust.

N was aware of the expiry of the s.136 order. She left the hospital around 6.35pm on 11th February 2025. On 12th February 2025, in the early hours of the morning, N was located in a town centre intoxicated and indicating that she intended to end her life. N was again made the subject of Police Powers of Protection, and she was taken to a safe place. The only safe place that could be found was a police station. With the agreement of the local authority, the police took N to a family member's home from where she absconded. At about 7.30am the next morning, the police found her. There were concerns for her mental state and the police again detained her under s.136 of the Mental Health Act 1983. They took her to hospital for an urgent mental health assessment. 

On 14 February 2025 the application for a Deprivation of Liberty order came before the Court again and the Court was told N had agreed to be admitted to hospital as a voluntary patient. She had been taken there earlier in the day for that purpose but before the arrangements could be finalised, she had left the hospital. Hence the police had exercised their protective powers to take her into custody. The hospital insisted N had to go through the admission process again and that  would mean a 19-hour wait for N in A&E until her mental health could be assessed. The police and social services were waiting for a clear indication from the hospital that N would be seen before transporting her there. They considered that she could not be kept safe in the waiting area of the hospital. 

On 14 February 2025, the Judge expressed their dissatisfaction about the way the case was being managed stating it was unconscionable that those responsible for her health and social care could contemplate her remaining in custody for 3 days while she awaited assessment in hospital. The police powers of protection were due to expire on Monday morning and the case was listed for that morning if an agreement between Tameside MBC and the NHS Foundation Trust could not be reached. The Judge joined Manchester University NHS Foundation as a party and directed that should a hearing be necessary, it would be an attended hearing in London and that a member of senior management from both Tameside MBC and the NHS Foundation Trust  was required to attend that hearing.

Later, on 14 February 2025, a Multi-Disciplinary Team meeting was held to discuss N. By 7pm N was re-admitted to hospital under s.5(2) of the Mental Health Act 1983.

On 17 February 2025, the local authority made an urgent application within the proceedings as the s.5(2) order would expire at 3:03am and N was stating she would leave the hospital the minute it expired. The local authority, however, did not have a suitable placement for her. By the time the application came before me, the NHS Foundation trust was content to provide N with a bed for as long as reasonably required on condition that the local authority provided the staff to enable N to be kept safely on the ward whilst the local authority looked for a secure placement for her. To enable N to be kept safe on the ward, the Judge permitted the local authority to invoke the inherent jurisdiction and exercised that jurisdiction to deprive N of her liberty. The deprivations of liberty authorised were significant. They included: -

  1. Using up to 2:1 monitoring/staffing should N's behaviour require it 
  2. Preventing N from leaving the placement at North Manchester General Hospital without adult supervision at a level of up to 2:1 staffing, unless that had been prearranged and agreed it would be safe to do so. Such staffing ratio of up to 2:1 may also be in place within the hospital at North Manchester General Hospital. 

iii. When transporting N out into the community permitting up to a 2:1 ratio in the vehicle, excluding the driver. The doors and windows of the vehicle may be locked.

  1. Permitting the internal and external doors and windows to the ward to be locked or restrictors to be used to prevent N from leaving or barricading herself in a room within the hospital. 
  2. Reasonable and proportionate physical restraint.

    The case returned to court on 3 March 2025. The authorisation for N's deprivation of liberty would expire just before midnight on 3 March 2025. This was a far from perfect solution but one made in N's best interests to keep her safe in an environment where her physical and medical needs could be met whilst a placement was found for her by the local authority.

    The guardian visited and spoke to N whilst she remained in hospital. Within a report written for a review hearing, the Guardian stated that she was extremely concerned that the deprivations set out above were not being used appropriately and that the least restrictive provisions were not being utilised in respect of N. 

On 3 March 2025 the local authority's application came before HHJ Jordan sitting as a s.9(1) judge in the Deprivation of Liberty  List. A placement had been found for N. It was a sole placement and was available for her to move into that day. On that occasion the court sanctioned, as being in N's best interests, significant deprivations of her liberty to enable her to be kept safe at the new placement. They included: -

  1. 2:1 monitoring/staffing and, should N's behaviour require it, for an initial period of 4 weeks upon discharge from hospital the supervision can be increased to 3:1.
  2. Restraint of her person within the home or community for the purpose of preventing N from absconding or harming herself or others. 

iii. Prevention of N leaving the placement by a level of up to 2:1 staffing, unless this has been prearranged and agreed it would be safe to do so. 

  1. When transporting N out into the community permission for there to be a 2:1 ratio in the vehicle, excluding the driver. The doors and windows of the vehicle may be locked. 
  2. The internal and external doors and windows to the house may be locked or restrictors used to prevent N from leaving or barricading herself in a room.
  3. Supervision and observations may take place to mitigate the risks to N using items to self-harm, the level of supervision and observations to be determined by the placement staff in response to N's presentation and associated risks. 

vii. Items identified to pose a risk to N in being used for the purpose of self-harm or otherwise causing harm to others may be removed, subject to any items removed being recorded with reasons for removal identified.

viii. Use of physical restraint to protect N from physical harm. Reasonable and proportionate physical restraint may be used by agents of Tameside MBC, who have undergone appropriate restraint training, when this is necessary to keep N or others safe. These provisions in place for N are necessary, the least restrictive and a proportionate response to the risk of harm which arise. The local authority and their agents are reminded that the declaration is a permissive one only and the restrictions should only be used if and when they are necessary and not otherwise.

The case was listed for  further review on 7 March 2025. On that occasion I was told that there had been a series of significant incidents since 3 March 2025 including an incident of self-harming by cutting. She absconded on 6 March 2025. N was found in the early hours of 7 March 2025. She was taken to a police station where she was kept whilst the application was before me. N was refusing to eat and drink. The police intended to take N to hospital for further mental health assessment. They remained with her at the hospital until registered mental health nurses attended. The local authority had made clear to the hospital that they must be notified forthwith of any plan for discharge and there must be a discharge planning process. In the meanwhile, the local authority stated they were taking immediate action to ensure N's placement was now physically secure and that she had somewhere safe to go on discharge. 

Such was the concern for N that the matter was listed for a further hearing on 12 March 2025. By then, N had been discharged back to her placement and was reported to be more settled. The level of supervision that it was necessary to authorise to keep her safe was reduced. Thereafter there were approximately monthly reviews before the Court  to consider whether the deprivations of liberty previously sanctioned remained necessary and proportionate. In parallel a step-down plan was implemented; there was liaison between children's social care and adult social care teams to ensure she had ongoing support post-18 and close interagency working between social care and mental health and therapeutic agencies. They all worked with N who engaged with the help and support that was offered to her. N's stated aim was to be free of restrictions by her eighteenth birthday.

The last hearing before the Court was on 21 May 2025. The Judge was informed that all were in agreement that N is now able to make better choices, be independent and to make positive decisions for her own welfare. There was a plan in place for her to move to a more appropriate property that will allow her to progress being fully independent. She will continue to be supported by Adult Social Care and the Leaving Care Team. N had been allocated a personal adviser from the Care Leaver Service and an Adult Social Worker with whom she has started to build positive relationships. The the local authority no longer sought the court's authorisation to deprive N of her liberty. The current application was no longer necessary, and the proceedings could conclude.

What can be learnt?

Mrs Justice Henke in her judgement highlights the following:


N's case was one of the many cases that are issued through the Deprivation of Liberty List each year. According to the Ministry of Justice in 2024 1280 children and young people were the subject of a Deprivation of Liberty order last year. The orders are made under the Inherent Jurisdiction. The applicants are typically local authorities or Hospital Trusts. The inherent jurisdiction is a welfare jurisdiction. The young person's welfare is the paramount consideration. The orders are draconian. They are a significant infringement by the State of the child or young person's right to liberty. They are only made where it is lawful, necessary and proportionate to detain or restrict a child or young person's liberty in order to secure their welfare. The orders must have an educational element - Art 5 (1)(d) ECHR. 

Deprivation of Liberty orders are permissive in nature. The order authorising the deprivations of liberty is not a prescriptive list of restrictions which must be imposed. It is a menu of what may be imposed by the applicants if it is necessary and proportionate to do so to safeguard the young person. The applicants must at all times use the least restrictive option. 

N, like many of the young people who are the subject of a Deprivation of Liberty orders, has suffered trauma. They exhibit challenging behaviours which are often extreme. They put themselves at risk of significant harm and possible death. They are in crisis running from their placements, self-harming and taking steps to commit suicide. Section 136 of the Mental Health Act 1983 is used but it is of limited duration. The police have nowhere suitable to detain them and they find themselves in custody. They, like N, are assessed for the purposes of the Mental Health Act 1983 but invariably they fall out with ss.2 or 3 of the Mental Health Act 1983. They have capacity which means that the Mental Capacity Act 2005 cannot be used to make decisions about their placement, their care and support and their treatment nor can it be used to authorise their detention. They are sometimes regarded as "too risky" for secure accommodation pursuant to s.25 of the Children Act 1989. Sometimes, although they may be suitable for secure accommodation under s.25 of the Children Act 1989, no such bed is available or likely to become available within the child's timeline because of the paucity of provision. They thus are outside the statutory schemes which would permit their detention. The purpose of exercising the inherent jurisdiction is to fill the statutory lacuna. It grants the applicant permissive powers to detain the young person and restrict their liberty so that they may be safe. Under the orders the children are often kept in unregulated, and sometimes, unsuitable setting to keep them safe in response to a crisis whilst other more suitable placements are found. That can be a protracted process given the paucity of provision and the need often to develop and implement bespoke provision. It means that children and young people are detained or have their liberty restricted for often protracted periods of time. 

When the application in N's case came before this court, she, like many young people subject to a Deprivation of Liberty application, was in crisis. The chronology in the middle of February 2025 was cyclic and harmful. Her needs were not being met. She was not safe. There was a real risk she would take steps to commit suicide and succeed. The Judge gave permission to N's Guardian and her solicitor to release the papers in N's case to the Official Solicitor to consider whether N has a claim against either the local authority or the Hospital Trusts in this case in relation to (i) the period in the middle of February when N was stuck in a revolving door between the police, the local authority and the Hospital Trust and (ii) in relation to her detention in hospital when the Guardian says the restrictions authorised by the court were imposed rigidly and prescriptively and the least restrictive option was not understood by those trusted to implement them.

The trajectory of N's case changed once there was multi-disciplinary working. From the multi-disciplinary meeting on 14 February 2025, there was joined up thinking and a plan began to be formulated that met N's needs. It is not perfect, but it was a plan with which N could and does engage with. Like any good plan, it had an objective and a timeline. The aim was that N should be free from any restrictions other than that which she chose to impose on herself by her eighteenth birthday. It recognised that she was soon to be an autonomous adult with capacity.

Often, we learn from what went wrong but we can also learn from what went well. From N's case, in my judgment we can learn that:

  1. Working together between the statutory agencies is key. Once the statutory agencies came together at a multi-disciplinary meeting, a plan began to be formulated to meet N's current needs and her anticipated needs in adulthood. The multidisciplinary process ran in parallel to the court proceedings with the court being updated on its progress. 
  2. N participated by speaking to me. She was listened to and her wishes and feelings were factored into decision making whilst her welfare remained my paramount consideration. She wanted to be free of restriction when she turned eighteen. That provided a focus for her and for the agencies. It influenced and shaped a step-down plan.
  3. Within the court proceedings, a step-down plan (a route-map out of restrictions) was drafted by the applicant. It was considered at each interim hearing. At each interim hearing, only those restrictions which were likely to be necessary and proportionate were permitted.
  4. The case was timetabled and a final hearing listed.
  5. The applicant local authority was reminded of its obligations under the Care Leaver legislative scheme (see ss.23A-E of the Children Act 1989 and the Care Leavers Regulations 2010) and went on to fulfil its statutory obligations. N now has a Pathway plan, a key worker and a personal adviser. The effective implementation of the Care Leavers legislative scheme should run alongside the court proceedings. Sadly, this court's experience is that sometimes that scheme is not observed or not fully observed as it should be.
  6. N was referred to adult social services which enabled the seamless transition N deserved. As an obviously vulnerable young person whose need for care and support was unlikely to end on her eighteenth birthday, a seamless transition between adult and children's social services was properly anticipated and acted on. Section 17ZH of the Children Act 1989 is an often-overlooked provision. It deals with the transition of assessments of children under s.17 Children Act 1989 and adults under the Care Act. The spirit of the policy which underpins that section was observed in this case.

This case is a helpful yet sad reminder of the difficulties facing many young person’s today and highlights the need for joined up multi-agency planning for these vulnerable young people.