How does the Court approach the increasingly difficult decisions it faces in relation to the national shortage of secure accommodation for children? Ellen Lloyd analyses an important ruling.
The case of Lancashire CC v G  EWHC 2828 concerned a highly vulnerable 16 year old who was in urgent need of a secure placement following discharge from a psychiatric hospital. At the time, there were no secure placements or indeed any regulated non-secure placements available anywhere in the UK. As such, the local authority made an application seeking to place the child in an unregulated placement with an order to authorise the deprivation of her liberty at such placement on the basis that this was the only available option. The Court, ‘with deep reservations’, made the order as the only alternative would have been to discharge her into the community where there was a high risk of the child coming to significant harm.
- The Court recognised that there continues to be a national shortage of both secure accommodation and regulated accommodation services for children and young people. It is possible, therefore, that in the specific circumstances, it may be in the child’s best interests to be placed in an unregulated non-secure accommodation, in circumstances which deprive them of their liberty.
- The Court’s inherent jurisdiction is available to the Court in those circumstances.
- There is a risk, where there is only one option available, that the cardinal principles of the welfare of the child will be undermined.
- The President of the Family Division’s guidance in a previous case sets out the expectation that where a child is placed in an unregulated placement, steps will be taken to seek registration with the relevant regulator.
- There may, however, be cases where the placement does not intend to apply for registration.
- There is likely to be an expectation on the placing local authority to take steps to ensure that any unregulated and/or non-secure accommodation placement applies the framework for and/or adheres to the requirements that would be in place if it were regulated secure accommodation.
- The case, once again, highlights the inadequate provision in this jurisdiction for children and adolescents who do not meet the criteria for detention and treatment under the MHA but nonetheless require assessment and treatment for mental health issues within a restrictive clinical environment.
What is the difference between secure and non-secure accommodation, regulated and unregulated?
Secure accommodation is accommodation that:
- Is provided for the purpose of restricting liberty under s.25 Children Act 1989; and
- Has been approved as being secure accommodation by the Secretary of State (if in England) or the Scottish Ministers (if in Scotland);
- Meets the requirements of the Children (Secure Accommodation) Regulations 1991 and the Children (Secure Accommodation No. 2) Regulations 1991
- Due to its very nature of restricting the liberty of a child, secure accommodation is tightly regulated under the provisions of the Children Act 1989.
Regulated means accommodation that is registered with:
- Ofsted in England; or
- Care Inspectorate Wales in Wales.
Before Mr Justice MacDonald.
This case concerned the welfare of G, a 16 year old who had been in foster care for much of her life. Since January 2020 she had had twenty in-patient admissions to hospital in respect of her self-harming behaviours and suicidal ideation. She has a diagnosis of PTSD.
In August 2020, an application had previously been made by the local authority under the inherent jurisdiction to authorise G’s deprivation of liberty at a residential placement. G then moved to a different residential placement. In October 2020, the local authority applied for a secure accommodation order under s.25 Children Act 1989, however at that time, it had been unable to identify any such placement and the Court authorised a further period of deprivation of liberty for G’s then residential placement whilst a search was undertaken to identify a suitable long-term secure accommodation placement. Subsequently, G was detained under s.2 Mental Health Act 1983 (“MHA”) to an adult mental health ward due to a lack of Children and Adolescent Mental Health Services (“CAMHS”) psychiatric intensive care beds.
During that admission to hospital under the MHA, G continued to demonstrate high risk behaviours to herself and violent and aggressive behaviour towards staff. The multi-disciplinary mental health team assessed G as not meeting the criteria for continued detention on a mental health ward under the MHA, although they did conclude that G may be developing an emerging personality disorder and would need to receive support from appropriate mental health services. As such, a discharge meeting was scheduled and the expectation was that G would be discharged. A Court hearing was listed for the same morning as the discharge meeting.
The Court heard that whilst a secure placement was urgently needed for G (and indeed, the local authority’s primary application was for a secure accommodation order), at that current time, no such placement was available anywhere in the United Kingdom. As an alternative the local authority sought to place G in a regulated but non-secure placement with an order authorising her deprivation of liberty. Again, however, at that time, no such placement was available anywhere in the United Kingdom. There were no CAMHS psychiatric beds available and that in any event, her treating clinicians confirmed that G did not meet the criteria for continued detention under the MHA.
The only available option was to discharge G to an identified unregulated non-secure placement, which had already informed the local authority that it would not be prepared to apply for Ofsted registration. It wasn’t clear why the placement would not apply for Ofsted registration, nor, how it would seek to apply the regulatory framework applicable to secure accommodation orders The local authority submitted that this placement was the only available option to safeguard G’s welfare. The Children’s Guardian was not able to support the placement, although she did recognise that in reality, this was the only option currently available. All parties agreed that G met the criteria under s. 25(1) of the Children Act 1989, but no secure placement was available.
The Court was therefore left with a difficult decision of either discharging G into the community (where she would almost certainly cause herself possibly fatal harm) or authorising the deprivation of her liberty in an unregistered non-secure placement that all parties agreed was sub-optimal in respect of her welfare. That was the only option available.
The Court granted the relief by the local authority. It concluded that, whilst with ‘deep reservations’, it was satisfied on balance that it was in G’s best interests to authorise the deprivation of her liberty in the unregulated non-secure placement notwithstanding that the placement was sub-optimal from the perspective of meeting G’s identified welfare needs.
‘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 harm’.
In coming to this decision, the Court provided a summary of multiple Court decisions which had frequently highlighted the ‘the shortage of clinical provisions for placement of children requiring assessment and treatment for mental health issues within a restrictive clinical environment, the shortage of secure placements and the shortage of regulated placements’.
The Court stated that this was not a case where the President of the Family Division’s practice guidance could be complied with because the identified placement had already confirmed that it did not intend to seek registration with Ofsted. As such, the Court confirmed that it could only authorise the placement for the shortest possible time before undertaking a review. The Court further confirmed that the decision was subject to the following caveats:
- It would be an emergency placement and would only be sustained for as long as it takes to identify a more permanent placement for G.
- The local authority would file a statement setting out the following:
- The reasons for the placement deciding not to seek registration;
- The steps taken to ensure that the premises and support being provided were safe and sustainable for G;
- The steps taken to assure itself that the premises, those working at the premises and the care being given was safe and sustainable for G;
- Steps it intended to take to ensure that the regulatory framework applicable to a secure accommodation placement was applied to the placement.
- A subsequent urgent review would be undertaken by the Court with a view to determining whether the placement should be maintained for a further short period or whether alternative provision for G should be made, if such alternative provision could be found.
Other key findings
What should a Court consider when determining an application for a secure accommodation order?
This case provides a helpful reminder of factors to consider when determining whether the relevant criteria is met for making an application for secure accommodation under s.25 of the Children Act 1989:
- Is the child being ‘looked after’ by the local authority or does the child fall within one of the other categories specified in regulation 7 of the Children (Secure Accommodation) Regulations 1991 (i.e. children who are accommodated by health authorities, NHS Trusts or local education authorities and children who are accommodated in residential care homes, nursing homes or mental nursing homes)?
- Is the accommodation where the local authority proposes to place the child ‘secure accommodation’, i.e. it is designed for or have as its primary purpose the restriction of liberty
- Does the child have a history of absconding and are they likely to abscond from any other description of accommodation? If yes, if they abscond, is the child likely to suffer significant harm? or
- If they reside in any other description of accommodation, are they likely to injure themselves or other persons?
- If proposing placement in a secure children’s home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation – or if it is in Scotland, by the Scottish Ministers?
- Does the proposed order safeguard and promote the child’s welfare?
- Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?
What happens if there is no secure accommodation available?
The Court recognised that where a local authority or Court is placed in a position of having to approve a ‘sub-optimal’ placement because it is the only option available, the welfare principle (that the child’s welfare shall be the Court’s paramount consideration) will be at risk of being undermined.
Where there is no secure accommodation available, the Court can sanction the placement of a child in either a regulated or an unregulated placement, authorising their deprivation of liberty under its inherent jurisdiction as an alternative to secure accommodation authorised under s.25 of the Children Act 1989.
Whilst previous case law has indicated that the Court cannot use its inherent jurisdiction to “cut across” the statutory scheme laid down in s.25 Children Act 1989 (i.e. if the criteria in s.25 Children Act 1989 are made out, the child’s placement should be authorised under s.25 Children Act 1989 and not by the Court exercising its inherent jurisdiction) – if there is no secure accommodation available, then the criteria in s.25 Children Act 1989 are not made out (because one of the pre-conditions to the making of a secure accommodation order is the placement that is proposed is secure accommodation), and therefore (notwithstanding the fact that all might be in agreement that what is required is secure accommodation and all of the other criteria in s.25 Children Act 1989 are made out), the Court is not prevented from using its inherent jurisdiction.
When a non-secure unregulated placement is considered, guidance issued by the President of the Family Division in a previous case provides that steps should immediately be taken to apply for registration so that the placement will become regulated within the statutory scheme as soon as possible. This includes:
- Explicitly setting out to the Court the placement’s registration status
- Set out the reasons why the placement does not require registration or the reasons for the delay in seeking registration
- Set out the steps that the local authority is taking to ensure that the premises and support being provided are safe and suitable for the child
- Ensure that steps are being taken by the placement to apply for necessary registration (if appropriate, that the application is submitted for registration within 7 working days from the date of the order)
- Court should review the order:
- Within 12 weeks if an application has been submitted to the regulator for registration of the placement; or
- Immediately, if within 10 working days of the original order, an application has not been submitted to the regulator for registration of the placement; or
- Urgently, if the regulator refuses the application or the placement withdraws the application.
However, that guidance does not “exclude the possibility” that it may be, in the particular circumstances of a particular case, in the child’s best interests to be placed in an unregulated placement.
Where there are not steps in place for the unregulated placement to apply for registration, it is likely that the Court will only authorise a placement there for a very short period before reviewing its decision. The Court is likely to want evidence from the local authority about:
- The reasons that the unregulated placement is not applying for registration;
- What steps the local authority will take to ensure that:
- the premises, those working at the placement and the support the placement is providing are safe and suitable for the child; and
- the regulatory framework applicable to secure accommodation placement is applied to the placement.