Winter 2020

No 18 Chambers eBulletin

Lancashire CC v G (No3)(Continuing Unavailability of Secure Accommodation) [2020] EWHC 3280 (Fam)

This is the third judgment given by Mr Justice MacDonald in a little over a month on this case, with the first being on 23 October 2020 and the second being on 18 November 2020.

As a brief background, G is 16 years old, has spent most of her life in foster care and is seen as extremely vulnerable. Since early 2020, G has been the subject of 20 hospital admissions arising out of the risk she poses to herself by reason of self-harming behaviours and suicidal intention.

At this hearing, and as was the position in the two previous hearings, the Local Authority state that G needs a secure placement as a matter of urgency. The Guardian disagrees and has disagreed throughout the previous two hearings. The Guardian contends that G needs a ‘regulated non-secure placement where therapeutic input can be provided to meet G’s welfare needs.’ [2]. The extremely unfortunate situation is however, that neither type of placement is available for G anywhere in the UK. This has been the case for the previous two hearings as well.

G therefore remains currently in an unregulated placement. Mr Justice MacDonald described it as ‘sub-optimal having regard to G’s highly complex welfare needs and one that is not prepared to apply to Ofsted for registration’ [3]. Since the last hearing, G’s behaviour has deteriorated, and she has shown signs of worrying behaviour such as making herself sick once she has eaten and attempting to strangle herself a number of times with different objects. This, at times, resulted in ambulances being called [11].

Mr Justice MacDonald was therefore left again with the difficult decision. He had two options. First, he could refuse the continued authorisation of the deprivation of G’s liberty in an unregulated placement, which will lead to her having to be discharged into the community. Mr Justice MacDonald was satisfied that if he did this, G would ‘almost certainly cause herself possibly fatal harm’. Or, alternatively, he continues to authorise the deprivation of G’s liberty in an unregulated placement, which all parties agreed was sub-optimal for G’s needs, and meaning the therapeutic input which G so desperately needs cannot begin [16].

Mr Justice MacDonald revisited the relevant law, in particular Article 5 of the ECHR and applied the relevant facts. He came to the conclusion that he had no option but to renew the authorisation of G’s deprivation of liberty in order to keep her at her current unregulated placement. He listed the matter for a review in 14 days.

It was clear that this was not a decision which Mr Justice MacDonald took lightly. He considered the comments of Sir James Munby in Re X (A Child)(No.3)[2017] EWHC 2036. Mr Justice MacDonald concluded his judgment by stating ‘ we have a responsibility primarily to G but also to ourselves to ensure her physical, emotional and educational welfare is safeguarded and promoted…At present, society, our society, is failing that course with respect to G…that failure is, and can only ever be, a self-defeating mark of shame for us all’ [28].

FS v RS and JS [2020] EWFC 63

This is a case of a 41 year old man seeking ongoing maintenance and financial relief from his parents. His claims were made pursuant to section 27 of the Matrimonial Causes Act 1973, Schedule 1 of the Children Act 1989 and the inherent jurisdiction, which applies to adults who, though not lacking capacity are “vulnerable”.

To support his claims the applicant prayed in aid his rights under Articles 2, 6 and 8 of the ECHR on their own and read in conjunction with Article 14.

Sir James Munby sets out at the beginning of his judgment the following, “This is a most unusual case. Indeed, so far as I am aware, and the very experienced counsel who appear before me do not dispute this, the case is unprecedented. Certainly, the researches of counsel have identified no decision directly in point. The applicant’s own description is that his applications are “novel”. I suspect hat the initial reaction of most experienced family lawyers would be a robust disbelief that there is even arguable substance to any of it.” [para 1]

By way of background, the respondents are the applicant’s parents and are married. They have never divorced and live together in Dubai. The applicant is their son who has several educational and professional qualifications – he has a first degree in Modern History, he is a qualified solicitor, he has a Masters in Taxation and he is now studying for his Chartered Tax Advisory and Law School Admissions Test examinations. He also has various difficulties and mental health disabilities.

The applicant contended that his difficulties constituted “special circumstances” as per section 27(6B)(b) of the 1973 Act and paragraph 2(1)(b) of Schedule 1 of the 1989 Act and that he was “vulnerable” as per the authorities relating to the inherent jurisdiction.

Sir James Munby in summary concluded that the statutory language of section 27 of the Matrimonial Causes Act 1973 and paragraph 2(4) of Schedule 1 of the Children Act 1989 were clear. The claim under section 27 failed because there had been no previous periodical payments order in place. The Respondents had argued that there was no freestanding jurisdiction under the 1973 Act for a child to bring a claim for maintenance against a party to a subsisting marriage and Sir James Munby agreed. The claim under Schedule 1 failed because his parents are living with each other in the same household.

Sir James noted that the Law Commission had been clear in recommending that the powers to make orders on the application of an adult child should only be available if the parents’ relationship has broken down. The intention or purpose was to place children of married and unmarried parents who were separated, divorced or divorcing on an equal footing.

In J v C (Child: Financial Provision) [1999] 1 FLR 152, Ms Justice Hale (as she was) said “that children are entitled to provision during their dependency and for their education, but they are not entitled to a settlement beyond that, unless there are exceptional circumstances such as a disability, however rich their parents may be.” Sir James said disability would be one of the most obvious examples of a “special circumstance” under section 27(6B)(b) of the Matrimonial Causes Act 1973 or paragraph 2(1)(b) of Schedule 1.

Dealing with the inherent jurisdiction claim, Sir James began by reminding himself that the inherent jurisdiction was a safety net and not a springboard to a claim. The Respondents argued there was no power to award maintenance under the inherent jurisdiction as it is a creature of statue not the common law and Sir James agreed.

Sir James considered that the inherent jurisdiction could not operate as the applicant argued for the following reasons:

  • The claim lies far outside the accepted parameters of the branch of the inherent jurisdiction prayed in aid by the applicant. The branch of the inherent jurisdiction used to protect vulnerable adults existed to protect the autonomy of adults who while having capacity are vulnerable [paras 114-122];
  • The inherent jurisdiction cannot be used to compel an unwilling third party to provide money or services [paras 123-131];
  • The inherent jurisdiction cannot be used to simply reverse the outcome under a statutory scheme, which deals with the very situation in issue, on the basis that the court disagrees with the statutory outcome [paras 132-138].

The applicant was ordered to pay the respondents’ costs in the sum of £57,425.

Re C (A Child: Adoption) [2020] EWFC 66

This was a final hearing of care proceedings concerning a 1 year old child before Mr Justice Keehan.

The plan at the interim hearing stage was for C to be accommodated by the local authority in foster care upon her discharge from hospital. This plan was approved by the district judge on 11th January 2019. The Mother subsequently applied for permission to appeal the interim care order and this was granted at a hearing before the circuit judge on appeal on 17th January 2019. The local authority was initially reluctant to change its care plan and the possibility of judicial review was raised. The case was referred to Mr Justice Keehan and with his encouragement the local authority amended its care plan so that the mother could move to C’s placement.

The mother underwent two psychological assessments while in placement and in the second addendum assessment the mother was praised for her progress over the past year including engaging in therapy but the report underlined the need for robust support for the mother and the risk posed by the mother’s choice of relationships.

The local authority applied on 24th January 2020 to extend the proceedings to enable the mother and C to move into the community with a package of support with the aim to assess the mother outside the heavily supported environment of a mother and baby foster placement. On 27th January 2020 the mother and C moved to supported accommodation. The assessment of the mother was completed by 23rd April 2020 and was negative due to ongoing concerns about her ability to safely care for C.

Due to concerns of the mother allowing C to be around risky individuals she was moved to another supported accommodation in the community but further concerns were raised so it was agreed the mother and C would move to a residential unit on 1st September 2020. The mother initially refused to go to the placement on the day of the move but subsequently agreed to go on 7th September 2020. She left the next day. On 10th September 2020 Mr Justice Keehan granted the local authority’s application for C to remain in foster care where she is thriving and the risks associated with her medical condition have diminished.

At the beginning of the final hearing the mother informed the Court and the other parties that she no longer wished to give evidence as the issues in dispute were not factual but disagreements over interpretation of the facts. Discussions took place between the parties and the mother provided a document with further concessions made by the mother. At the final hearing the evidence was therefore limited to the social worker and the Children’s Guardian as the father had early on in proceedings recognised he was not in a position to care for C.

“From the outset of these proceedings, I have striven to enable C to remain in the care of her mother and to be brought up by her. From time to time, and despite the opposition of the Local Authority and the Children’s Guardian, I have refused to sanction the removal of C from her mother’s care and given her every conceivable chance to prove she could provide C with a safe, secure and stable home. This final hearing was listed in June 2020. The mother has known from then what she had to do to persuade the professionals and ultimately the Court that she could provide such a home environment for C.” [para 46]

In paragraphs 47 to 51 the Court outlines the difficulties the mother has faced over the recent months leading to the final hearing.

“I readily acknowledge that the mother had been under very considerable stress and pressure with this Final Hearing looming over her. Her mental health had deteriorated. Nevertheless, in all of the circumstances of this case, the mother’s decision to leave the residential unit within 24 hours of her arrival was inexcusable and was yet the latest example of the mother failing to prioritise the needs of C. I note that in her final statement and in the further concessions made on the first day of this hearing… the mother acknowledged that her actions were unreasonable at the residential unit and were not in the best interests of C.” [para 56]

Mr Justice Keehan concluded that regrettably the mother is not presently or for the foreseeable future capable of consistently meeting the welfare best interests of C or of providing her with a safe, secure and stable home.

“Standing back and considering the three options, a speculative and unknown placement with the mother, placement in long term foster care or a placement for adoption, I am wholly satisfied that the only option which would meet the welfare best interests of C throughout the whole of her life is a placement for adoption. It is a proportionate and necessary order for the Court to make. This is a case where in the welfare best interests of C, nothing else will do.” [para 69]

Care and placement orders were made in this case.

Lucy (care proceedings) [2020] EWHC 2801 (Fam) (09 October 2020)

Mrs Justice Lieven DBE conducted a three day final welfare hearing in care proceedings following a fact-finding hearing where the outcome was that the Judge found on the balance of probabilities that Lucy’s older brother William did not commit suicide but rather died at the hands of either his father, mother or older brother Charles. All three were placed in the pool of perpetrators.

Lucy is 12 years old and has been in foster care for two years. This judgment dealt with what happens to Lucy now. For the two years she has been in foster carer it was noted that she “has refused to develop any relationship with the foster carer and has effectively lived a double life. She has told nobody at her school that she is in foster care and she has remained totally committed to her family and to returning home.” [para 3] This lack of commitment to the foster carer included not unpacking for two years and refusing to accept any support or help from her.

The local authority’s final care plan proposed Lucy remains in long term foster care with limited contact to her family. There was an SGO assessment of Lucy’s older sister Belinda, which was negative. The parents sought Lucy’s return to their care or alternatively that she is placed with Belinda separately from the family home and Belinda should be Lucy’s primary carer. Lucy being cared for by Belinda was supported by the independent psychologist and the Guardian so long as a careful package of support is put in place. Shortly before the final welfare hearing the IRO indicated in an email she now supported the Guardian’s position.

In conclusion the Court found the difficulty of being faced with two options, which both give rise to significant risks to Lucy. If she remained in foster care presumably until she is 16 she will be very upset and unhappy. “In my view that option is likely to give rise to real long term emotional and psychological harm and will probably create lasting damage to her educational prospects. L has had an exceptionally difficult life experience since W’s death and, in all probability, before that given the issues within the family. In my view and that of Dr v R, long term foster care will probably cause her irreparable psychological damage” [para 43]. “But on the other hand, if I set up a process by which she lives with Belinda, let alone with her parents I am returning her to a family which on my findings were involved in the death of W, and since then have quite deliberately covered up the truth of what happened. The family have also deliberately minimised other recorded incidents of violence within the family and routinely alleged that problems are the fault of external bodies such as police, local authority or school when this is plainly not the case. The family are deeply hostile to public authorities (local authority, police and in many instances school) and are unlikely to reveal any difficulties unless forced to do so.” [para 44]

The Court concluded it was not safe to return Lucy to the care of her parents. The quantification of risk is too uncertain and there was still a lack of openness and cooperation by the family to persuade the Court that the local authority could protect her from very significant risk of harm.

“Although I am concerned about risks to L if she lives with Belinda, in my view the balance of her interests is firmly in favour of placing her with Belinda and setting up a package of support that maximizes the prospect of that placement succeeding.” [para 47]

In paragraphs 48 to 57 Mrs Justice Lieven DBE balances the pros and cons of placing Lucy with her sister Belinda considering the welfare checklist. It is a balanced and well thought out decision not hiding from the clear difficulties with a placement with Belinda but also the clear difficulties of leaving Lucy in foster care.

Having conducted that balancing exercise, Mrs Justice Lieven DBE concluded that the local authority care plan for Lucy to remain in long term foster care is not in Lucy’s best interests and should be rejected. The judge also rejected the parents’ primary case that Lucy should return to their care. Mrs Justice Lieven DBE continued the interim care order to allow a transition plan to take place for Lucy to move to Belinda’s independent care outside the family home.

We now wait to see what if any judgment comes from the matter returning before Mrs Justice Lieven DBE to determine the final care order. There are a number of things that need to take place such as unsupervised contact between Lucy and Belinda, assistance to be provided to Belinda and her approval as a Regulation 24 carer and the drawing up of a working agreement with the family.

C (A Child: Care Proceedings) [2020] EWFC B46

This was a final hearing in care proceedings in relation to a child, C, born in 2017. At the conclusion of the hearing the Judge determined that C should remain in her parents’ care but further evidence was required as to the support the local authority, other agencies and family and friends could provide to the parents before the Court could decide whether to make a supervision order or no order.

By way of background the parents each had a learning disability. C was born prematurely at 34 weeks in 2017 with a congenital heart condition, which was repaired by heart surgery in February 2018 when she was about 6 months old. C has a number of other conditions including global development delay, reduced tone of lower limbs, brachycephaly – flattened profile to the back of the head and the trunk, small chin and short parebral fissures – openings in the eyelids. During the proceedings genetic testing was undertaken identifying C had an underlying genetic condition, HIVEP2-related intellectual disability inherited from father. This predisposes her to learning disability and according to medical evidence obtained during the proceedings is a causal factor in her global development delay.

At the final hearing the local authority’s position was that C should be removed from her parents’ care, having not been removed despite the interim plan being to remove her from her parents’ care but the Court not endorsing the same, and placed with a cousin of the mother under an SGO. That remained the position of the local authority until the start of the final hearing when they altered their position to placement with paternal grandparents under an SGO. The parents opposed the local authority’s care plan and their position was that C should remain in their care and the local authority should coordinate a suitable package of support from the local authority, other agencies and family members to enable the parents to bring up C in their care. The Guardian supported the parents’ position in her final analysis. She was critical of the local authority’s evidence as it inadequately addressed either parent’s parenting capacity or the support that they required. In the Guardian’s meetings with the parents they demonstrated insight into the local authority’s concerns; they accept they need support and can use it and father accepts that he must take his medication and address his anger issues. The Guardian found the parents’ care of C to be impressive – not only her basic care but her need for stimulation, soft tones to be used, encouraging and responding with praise. [para 36]

Interestingly C had made significant progress since the Guardian had last seen her, describing her progress as extraordinary. “Contrary to the impression of vulnerability in the written evidence, C is a resilient, steely, determined little girl who has developed her own sophisticated communication system to play and interact with others. The parents are emotionally attuned to her and her emotional touchstone. She does not stand out in a nursery of two year olds.” [para 37]

The Court quite rightly referred to In re D (A Child) (Care Proceedings: Adoption) [2016] EWFC1 where Sir James Munby P considered what approach social services and the court should take to parents with learning difficulties. [para 45-48]

The Court also refers to the President’s Guidance on Family Proceedings: Parents with a Learning Disability which refers to the guidance issued under the title “The Working Together with Parents Network update of the DOH/DfES Good Practice Guidance on working with parents with a learning disability (2007)” (“the WTPN Guidance”), which was updated in September 2016. The President’s Guidance states that the 2016 WTPN Guidance was referred to with approval and applied in A Local Authority v G (Parent with Learning Disability) [2017] EWFC B94, a decision of HHJ Dancey, which is available on Bailii. Paragraph 38 of HHJ Dancey’s judgment contains a very helpful summary of the key principles contained in the WTPN Guidance but relevant sections were relied upon in this case at para 49.

What is clear is that local authorities and the court must ensure that the possibility of parenting with support is properly and thoroughly investigated before concluding that a child should be removed from learning disabled parents, and that learning disabled parents are not discriminated against or treated unfairly in the approach taken before and during care proceedings. [para 51]

District Judge Duddridge was critical of the approach of the local authority, “local authority’s approach has been driven by a narrow focus on the outcome it has sought since the start of proceedings, instead of standing back and looking at the evidence as a whole, in a balanced way, when formulating and reconsidering its final care plan…. At the conclusion of the evidence relied on by the local authority, I invited them to reconsider their position. They did so, but stated that they wished to pursue their case and to cross-examine the Guardian. Of course, they were entitled to do that but it adds to the impression that the local authority was determined to obtain the particular outcome it sought.” [para 68]

“It most likely stemmed from a failure to internalize the principles in Re D and integrate them in practice. This has led the local authority to focus on deficiencies in the parents’ capacity and adopt inflexible assumptions about their impact on C’s welfare, to rely on evidence that has become out of date whilst giving insufficient recognition to the changes and progress that have been made during these proceedings, and to fail properly to consider and identify how the parents can be supported in the long-term to provide good enough parenting to C. I can understand that, at the start of these proceedings, the local authority believed based on the evidence then available that C was already suffering significant harm as a result of neglect by her parents. But once the evidence revealed that her global development delay could not be attributed to her parents’ care, the focus should have shifted to identifying and providing the support the parents needed and reviewing the progress they made, as had been recommended by the ISW [pre-proceedings].” [para 68]

The District Judge concluded that no order should be made on the basis that a supervision order adds little in practical terms in a case like this where the evidence shows the parents are able and willing to engage with and benefit from the support provided by the local authority and other agencies.

District Judge Duddridge made a number of observations at the end of his judgment, “I recognise that the resources of social services are stretched and they are performing a difficult job, under difficult conditions, for which there is little public recognition and they do so from a sense of vocation. I also accept that, in a case like this, the decision whether to start proceedings involves a difficult evaluation and a local authority is particularly vulnerable to criticism, whichever decision it makes, if it gets it wrong. LA clearly invested significant resources during the pre-proceedings phase, including obtaining the cognitive assessment by Mr C and the parenting assessment by ISW, for which they are to be commended. LA proved threshold in this case. The evidence showing that C’s GDD could not reliable be attributed to her parenting and has genetic and organic causes was only obtained during the course of the proceedings. For those reasons, it would not be fair to criticise LA for issuing these proceedings even though I consider, with the benefit of hindsight, that they could have been avoided had LA implemented ISW’s recommendations fully. It is however regrettable that LA did not attempt to fully implement those recommendations before commencing these proceedings and the explanation that this was due to an oversight is unsatisfactory. Furthermore, in my judgment, LA should have reconsidered its position robustly and thoroughly as soon as the genetic testing and the evidence of Dr R were available.” [para 95]

“On the other hand, LA’s evidence and conduct in these proceedings have demonstrated that, in a number of respects, they have not understood the recommendations in Re D and the updated WTPN Guidance referred to above and integrated them into their practice when dealing with learning disabled parents. It appears from TM’s evidence that she, and by implication her team and children’s services generally, have not received training on those recommendations and working with learning disabled parents, even though those recommendations specifically identify a requirement for such training. TM’s evidence also demonstrated that she did not adequately understand the concept of parenting with support or that the fact that learning disabled parents may need support, of varying kinds, throughout a child’s minority does not in itself mean that they cannot bring up their children. It is concerning that TM’s evidence was so defensive, as that in itself may be a barrier to learning and producing better outcomes. The decision to suspend M and F from bidding for alternative accommodation whilst keeping them in accommodation that TM accepted was both unsatisfactory and, more importantly, impacted adversely on their ability to care for C, was a harsh and unsupportive by-product of the stance taken by children’s services. TM’s failure to acknowledge the role children’s services played in that decision is also concerning. I can understand that the housing department will not have wished to allocated permanent accommodation until they knew whether C was going to remain in M and F’s care but I question why a temporary solution was not considered. TM’s attempt, in evidence, to shift responsibility for this state of affairs onto the parents unfair. LA’s conduct of these proceedings has, in some respects, also failed to take into account the particular needs of learning disabled parents to receive important information in good time to enable them to process it. In particular, their failure to serve their final evidence in accordance with the court timetable, the late obtaining of evidence from ELA and CE, the late announcement of their likely final care plan shortly before the IRH, and their decision to invite MC (but not PGP) to the IRH without forewarning the parents in advance are all open to criticism. This conduct would have been harsh and unsympathetic to parents without learning disabilities; its impact was magnified by the specific disabilities of M and F.” [para 96]

“I am concerned that the criticisms I have made within this judgment might be indicative of a systemic failure to implement the guidance I have referred to. I invite LA to consider whether that is the case and, if so, what steps need to be taken to address it. I hope they will do so.” [para 97]

Lancashire CC v G (Unavailability of Secure Accommodation) [2020] EWHC 2828 – where the court was left with no option but to authorise a 16 year old’s placement in an unregulated placement under deprivation of liberty authorisation.

Mr Justice MacDonald authorised the deprivation of liberty of a vulnerable 16-year-old girl, G, under the inherent jurisdiction. The court was left with no real choice but to authorise the deprivation in circumstances where the only placement that could be located was neither secure nor regulated. Mr Justice MacDonald was understandably troubled with the situation and questioned whether he was simply being forced by mere circumstance to make an order irrespective of welfare considerations rather than exercising the courts’ welfare jurisdiction. The stark choice facing the court was to refuse to authorise the deprivation of G’s liberty in an unregistered placement, which will result in her discharge into the community where she will almost certainly cause herself possibly fatal harm, or to authorise the deprivation of G’s liberty in an unregistered placement that all parties agree is sub-optimal from the perspective of her welfare because that unregulated placement is, quite simply, the only option available.

The background is troubling and yet will not come as any surprise to those practitioners who work in this area. G, 16 had been in the care of the local authority under a care order since 20th April 2010. G had been placed in long term foster care with her siblings and remained with her foster carers from the age of 4 to the age of 16. Since January 2020 G had twenty inpatient hospital admissions arising out of the risk she poses to herself due to suicidal ideation and self-harming behaviours. G continues to demonstrate high risk behaviours, which include ligatures, cutting and refusing water to the point she requires medical attention, she reports hearing voices and has a diagnosis of PTSD.

On 8th May 2020 G was detained under section 2 of the Mental Health Act 1984 and remained detained for 28 days under assessment. Upon discharge, G was placed in a residential placement. In this placement she was violent and aggressive to staff members and caused damage to property. As at 17th August 2002 she had written 9 letters stating she wanted to kill herself. The mental health team attended the placement and tried to assess G but she would not engage. Their assessment of G was that she did not meet the criteria for a Tier 4 bed and considered that the last 2 admissions had not been productive for G. After the Mental Health team had left, G assaulted staff, damaged property and ran from the placement threatening to kill herself.

On 24th August 2020 G knocked at the staff door and collapsed with a ligature around her neck. She reportedly had blue lips and was cold to touch. The ligature had to be cut off by staff and an ambulance was called. G was taken to hospital and was deemed medical and mentally able to return to placement. In the evening of 25th August 2020 G tied a long sock around her neck, which again had to be cut from her neck. G stated she would run away from the home in order to kill herself.

On 28th August 2020 the local authority applied for an order under the inherent jurisdiction authorizing the deprivation of G’s liberty. The authorisation was granted by HHJ Bancroft that same day.

G moved from her then placement to a specialist mental health inpatient home on 24th September due to her escalating behaviours. The court was not informed of this move resulting in a period of time where no order was in place to authorise the deprivation of G’s liberty at the home. At this home G continued to display high risk behaviours including swallowing objects, cutting herself and more self-strangulation. G has been violent and aggressive towards staff and had to be physically restrained.

On 6th October 2020 the home gave immediate notice on the placement and will not allow G to return after G stole a lighter from another young person in the home and set fire to her mattress in her bedroom. There was extensive fire and smoke damage in G’s room. The fire resulted in the evacuation of all in the placement but whilst outside G and another young person returned back in to the building to set fire to the curtains. G was subsequently arrested for arson and following her release from police custody on 7th October 2020 she was placed at a solo placement. G continued to damage property and shortly after she was placed assaulted staff as well as police officers at this placement.

On 7th October 2020 the local authority applied for a secure accommodation order pursuant to section 25 of the Children Act 1989. The matter came before HHJ Bancroft the next day. As of 8th October 2020 the local authority had not been able to identify a secure placement for G. In the circumstances the court granted a further deprivation of liberty order until 5th November 2020 for G’s then placement at the solo placement. The local authority confirmed it was intended to be an interim placement only until a suitable longer term placement could be identified. At the time of the hearing on 8th October 2020 G remained in police custody and the solo placement had agreed to G returning to them upon her release from police custody whilst a search for a longer-term placement continued.

After the hearing on 8th October 2020 G was detained under section 2 Mental Health Act 1984 and was admitted to an adult mental health ward. Since then a search had been ongoing for a CAMHS psychiatric intensive care bed but none had been available. G had continued to exhibit the same extreme behaviours whilst on the ward and had spent some time in exclusion. G began to ligature in exclusion and not attempt to self-rescue. Since coming out of exclusion for observation G was smoking in her room and when asked to extinguish she had been aggressive and violent and tried to stub her cigarette out on staff. G had also set fire to her room on the ward. The Guardian was able to visit G on 19th October 2020. G presented as dismissive and bordering on aggressive, repeatedly swearing at the guardian and made it clear she was ‘not bothered’ where she was placed. G had been assessed by the multi-disciplinary team as not meeting the criteria for continued detention on a mental health ward. The multi-disciplinary team concluded G may be developing an emerging personality disorder and will need to receive support from appropriate mental health services but considered that her presentation is driven by behaviour with no underlying diagnosable mental disorder meriting clinical treatment in hospital. The hospital had consequently planned on reviewing and discharging G on 19th October but scheduled the meeting for 10.30am on 23rd October instead. Based on the report the court had seen the expectation was that G would be discharged.

There was a hearing on 23rd October 2020 and as of the morning of this hearing the local authority contended that G was in urgent need of a secure placement. However no appropriate secure placement was available for G anywhere in the UK despite diligent and comprehensive search by the local authority. Alternatively the local authority sought to place G in a regulated non-secure placement under the auspices of an order authorizing the deprivation of G’s liberty.

A few days earlier in an attempt to better illuminate the chances of locating an appropriate secure placement, the court had directed a statement from the Secure Welfare Coordination Unit (“SWCU”) operated by Hampshire County Council. Pursuant to that direction, a letter from Helen Gunniss, the team manager of SWCU was provided. Mr Justice MacDonald stated that the “letter appears designed to make clear to the court that SWCU has only the bare minimum of responsibilities, and certainly no responsibilities towards the children for whom secure placements are sought via the service it offers” [para 22]. Mr Justice MacDonald set out the key points covered in the letter from Ms Gunniss, and the stated rationale of SWCU to cease providing the names and locations of the secure units available at any one time.

Ms Gunniss’ letter stated: “Due to the bed capacity and impact of Covid-19 a decision was made by the SWCU in collaboration with the SCH Register Managers, the DfE and the SWCU’s Board to amend the previous process of how beds were advertised. The beds are projected beds rather than declared beds to support planned moves and transitioning into the secure welfare estate. As part of this process change it was jointly agreed that it was not felt necessary that the SCH’s were named moving forward. This amendment has not impacted the process in any way, with the referrals being sent to all potential SCH’s for consideration as they previously would have” [para 23].

Despite the reasonableness or otherwise of that decision not being before the court for consideration, Mr Justice MacDonald felt “compelled to observe that Ms Gunniss’ rather blithe assertion that ‘This amendment has not impacted the process in any way’ may be true when looked at from the perspective of those adults who manage SWCU, but it is almost certainly not true from the perspective of the vulnerable children who require secure placements… the location of a given placement is central to effective care planning for a child, as is the ability to liaise with a placement that might be available for that child.” [para 24]

Mr Justice MacDonald continued to criticise “the decision of SWCU not to provide details even of the geographical location of the few placements that may be available means (as will be apparent to anyone with even the most rudimentary understanding of effective care planning) that information central to child-centred care planning is unavailable to a local authority. This may well make things easier for SWCU. The same cannot be said for the vulnerable children that local authorities, and in some cases the court, are charged with protecting”. [para 25]

It is unclear how the SWCU’s streamlining of the process of finding the most suitable placement matching the individual needs of each young person who needs secure care and being able to make informed decisions about the most appropriate placement for them if the SWCU will not provide the names and locations of the secure units in question to the local authorities that have responsibility for identifying the appropriate placement for an individual child.

The local authority submitted before Mr Justice MacDonald that the criteria pursuant to section 25(1)(b) of the Children Act 1989 were satisfied and its primary application was for a secure accommodation order. However no secure beds were available and so the local authority had to advance an alternative application for an order to authorise the deprivation of G’s liberty in a non-secure placement. Due to a lack of resources the local authority was effectively compelled to advance an unregulated non-secure placement as being in G’s best interests.

The Children’s Guardian was concerned as to whether a secure children’s home was an appropriate placement and sufficiently able to meet G”s needs but submitted that the reality was that there appeared to be no other option available for keeping G safe. The Children’s Guardian accepted the criteria at section 25(1)(a) of the Children Act 1989 are established beyond doubt but was unable to give her consent to G being placed in an unregulated non-secure placement under the auspices of an order depriving her liberty. She was however acutely aware that this was the only option available for G at the time. [para 27]

The statutory regime regulating the use of secure accommodation in respect of children along with the associated case law is set out in detail from paragraphs 29-48 of the Court’s judgment. The Court also considers articles 5 and 37 of the ECHR.

Mr Justice MacDonald provides helpful guidance at paragraph 48 for the 10 steps to be taken when an application is made to the court for an order under the court’s inherent jurisdiction to authorise the deprivation of liberty of a child:

“(i) The applicant should make the court explicitly aware of the registration status of those providing or seeking to provide the care and accommodation for the child.

(ii) If those providing, carrying on and managing the service are not registered, this must be made clear to the court. The court should be made aware of the reasons why registration is not required or the reasons for the delay in seeking registration.

(iii) The applicant must make the court aware of the steps it is taking (in the absence of the provision falling within Ofsted or CIW’s scope of registration) to ensure that the premises and support being provided are safe and suitable for the child accommodated.


(iv) Due to the vulnerability of the children likely to be subject to an order authorizing a deprivation of their liberty, when a child is to be provided with care and accommodation in an unregistered children’s home or unregistered care home service, the court will need to be satisfied that steps are being taken to apply for the necessary registration.


(v) The court should also be informed by the local authority of the steps the local authority is taking in the meantime to assure itself that the premises, those working at the premises and the care being given are safe and suitable for the accommodated child.


(vi) Where an application for registration has been submitted to Ofsted or CIW, the court should be made aware of the exact status of that application.


(vii) If an order is granted and no application for registration has been made, then the court order should provide that the application for registration should be submitted to Ofsted or CIW within 7 working days from the date of the order.


(viii) Once the court is satisfied that a complete application has been received by Ofsted or CIW, the court will review the situation regarding the registration status of those carrying on and managing the children’s home or care home service in a further 12 weeks. Such review (which may be on paper) will be in addition to any review the court requires to ascertain whether the deprivation of liberty should continue.


(ix) If the court has not received confirmation from the local authority within 10 working days of the initial order that a complete application for registration has been received by Ofsted or CIW, the court should list the mater for a further immediate hearing.


(x) If registration is refused or the applications for registration are withdrawn, the local authority should advise the court of this as a matter of urgency. The court will take this into account when deciding whether the placement of the child in the unregistered children’s home or unregistered care home service continues to be in the child’s best interests.”

Mr Justice MacDonald then goes on to discuss the very unfortunate and yet all too familiar circumstances the court and the parties were left with. Due to the lack of adequate provision for secure accommodation and a lack of regulated provision for children in the UK the court had to consider the use of an unregulated placement supplemented by an order to deprive a child of their liberty. This is despite the fact that on the local authority’s case that child met the statutory criteria for secure accommodation. He felt he could not escape the conclusion that the local authority’s application for a secure accommodation order in itself had been forced upon them partly due to the wholly inadequate provision for children and adolescents in the jurisdiction who “do not meet the criteria for detention and treatment under the Mental Health Act 1983 but nonetheless require assessment and treatment for mental health issues within a restrictive clinical environment.” The local authority representative submitted that G is another child falling through the gaps between “secure accommodation, regulated accommodation and detention under the mental health legislation” due to her complex welfare needs [para 49].

In paragraphs 50-61 Mr Justice MacDonald considers the case law authorities from 2017 onwards highlighting how the courts are repeatedly seeing cases demonstrating the shortage of clinical provision of placements for children and adolescents like G.

At paragraph 62 Mr Justice MacDonald asks what then is the court to do for G? He concludes that a decision had to be made that day for a vulnerable child at risk of possibly fatal harm. He had no option before him but to grant relief to the local authority under the court’s inherent jurisdiction. He was satisfied the placement in question would deprive G of her liberty under article 5 of the ECHR. The restrictions to be imposed upon G at the placement were then set out clearly at paragraph 63. The court was thus satisfied that G was unable to consent to the deprivation of her liberty, would be subject to continuous supervision and control and would not be free to leave the placement [para 64].

Mr Justice MacDonald stated with deep reservations he was satisfied that on balance it was in G’s best interests to authorise the deprivation of her liberty in the identified placement by the local authority despite it being “sub-optimal from the perspective of meeting G’s identified welfare needs and is an unregulated placement” [para 65]. “The brutal reality facing the court in this case is that if not deprived of her liberty in an unregulated placement there is an unacceptable risk that G will end her own life or cause herself and possibly others very serious physical harm” [para 66].

He stated that he was acutely aware that the Children’s Guardian was unable to support the placement. Ultimately however there was nowhere else for G to go upon discharge from the adult mental health ward and it was not in her best interests to be discharged into the community [para 67].

The only placement identified by the local authority available to G when discharged from the adult psychiatric ward is an unregulated placement, which has stated its intention not to apply to OFSTED for registration and therefore the President’s guidance “Placements in unregistered children’s homes in England or unregistered care homes in Wales” cannot be readily complied with. The placement had only just been identified shortly before the hearing and the fact that the court had been notified that the placement did not intend to seek registration meant the court could only authorise the placement for the shortest possible time before a review was undertaken- the Court listed a review hearing on Monday 26th October 2020 having heard the case on Friday 23rd October 2020. Mr Justice MacDonald made a number of caveats to his decision to deprive G of her liberty including that it was an emergency placement and so could only be sustained for as long as it takes to identify a more permanent placement for G and further updating information was required from the local authority with very tight timescales.

Mr Justice MacDonald was satisfied that “court is left with no option but to make an order authorizing the deprivation of G’s liberty at the unregulated placement located by the local authority. In short, this is the only placement available and the priority must be to keep G safe. She has nowhere else to go. As I make clear however, I harbour grave reservations about this decision.” [para 70]

He was left asking himself “whether, where there is only one, sub-optimal option open to the court apart from allowing G back into the community where she may well end her own life, the court is really exercising its welfare jurisdiction if it chooses that one option, or if it is simply being forced by mere circumstances to make an order irrespective of welfare considerations. At best the decision can be based on only the narrowest of such considerations, namely the bare need to prevent G from harming herself. Within this context, I echo the words of the former President in Re X (A Child)(No.3) [2017] EWHC 2036 (Fam) as I am left acutely conscious of my powerlessness, of my inability to do more for G.” [para 71]

Following the criticism of Ms Gunniss at the SWCU and the woeful lack of placements, it was directed by Mr Justice MacDonald that the judgment shall be sent forthwith to the Children’s Commissioner, various members of the Government, to Sir Alan Wood Chair of the Residential Care Leadership Board, to Isabelle Trowler the Chief Social Worker, to OFSTED and to SWCU.