A High Court judge who last week refused to exercise the inherent jurisdiction to authorise the continued deprivation of the liberty of a 12-year-old child (LT) in an acute psychiatric admission unit for adolescents, has since authorised her deprivation of liberty in an empty children’s home found by the local authority, it has emerged.
In his first ruling Mr Justice Poole had noted that LT does not have a psychiatric condition requiring hospitalisation and that evidence before the court had demonstrated that it was harmful for her to remain on the unit.
The authorisation for the deprivation of LT’s liberty at the unit which the judge had previously granted on 20 September 2021, expired at 4 pm on 23 September 2021.
In a second ruling handed down yesterday (28 September) Mr Justice Poole revealed that on the morning of Friday 24 September 2021, he had heard a fresh application by the local authority for the court to authorise the deprivation of LT’s liberty under the inherent jurisdiction.
The local authority proposed to use an empty children’s home as a bespoke placement for LT. The home would be available to accommodate her from 27 September.
At a hearing at 4 pm on 24 September Mr Justice Poole authorised the deprivation of LT’s liberty at the placement.
Giving his reasons, the judge said that notwithstanding the court’s refusal to authorise deprivation of LT’s liberty, she had remained on the psychiatric unit, she was not allowed to leave and she had been subject to physical restraint.
Evidence from the NHS trust responsible for the unit said that there had been a deterioration, as anticipated, since she left isolation (for Covid reasons) on 23 September 2021. Her continued presence was also said to be causing escalations in the behaviour of the other patients on the unit.
Mr Justice Poole said the local authority’s plan was to apply for a Secure Accommodation Order. However, according to evidence from the council’s Director of Youth Families and Social Work, there were currently approximately 50 children nationally on a waiting list for secure accommodation and those with behaviours such as LT’s often remained towards the back of the queue. Hence, he advised, it was “highly unlikely that this will be a viable solution for LT.”
What the local authority proposed – referred to by the director as “the least bad immediate alternative available” – was to transfer LT to the W Children’s Home from 27 September 2021.
The judge noted: “This is a registered children’s home which is currently empty after previous residents have departed. It can accommodate up to four children but for so long as LT is there, she will be the only resident. The staff on site are unqualified and have no experience of managing children who self-harm but the local authority plans to rely on agency nurses, using the same agency as currently provides nurses to work alongside the NHS staff to care for LT on the psychiatric unit. On handover, the Trust will provide advice and materials about managing LT to assist those caring for LT at the new placement.”
Mr Justice Poole said he had been reassured that the agency nurses had training in the use of control and restraint techniques that might be used when transferring LT to the new placement, and whilst she was accommodated there. Other staff were also to undergo training. A new manager had been deployed to the children’s home, who had been managing another children’s home which recently received a good/outstanding report from Ofsted.
“W Children’s Home is registered with Ofsted but it will now be operated in a very different way from how it was being operated at the time of its last inspection which was earlier this year. In effect, the local authority is creating a bespoke placement for LT as a bridging provision before a more settled solution can be found,” the judge said.
Mr Justice Poole then set out the restrictions on LT’s liberty whilst at the children’s home. These included that during waking hours LT would be accompanied by staff members inside the home on a 3:1 basis and outside the home on a 3:1 basis. LT would not be permitted to leave the placement without supervision.
The judge added that the care plan in place for LT required re-consideration in the light of this new placement, including the provision of therapeutic services and activities. “However, the immediate priority is safely to transfer her out of the psychiatric unit and to W children’s home.”
The council’s Director of Youth Families and Social Work had “understandably” expressed concern for the safety of those who would be caring for LT at the placement, as well as the safety of LT, the judge acknowledged.
“Nevertheless, there are advantages to LT being in the children’s home as opposed to the psychiatric unit," Mr Justice Poole said. "The Consultant Psychiatrist, Dr N, has reported to the court that LT’s repeated self-ligaturing is a new behaviour associated with her confinement on the unit. The triggers for her distressed episodes from being in a noisy, over-crowded unit surrounded by a number of adolescents with acute psychiatric conditions who appear to be increasingly hostile towards her, will be removed upon leaving the unit. If the transfer to W Children’s Home is successful, LT will no longer be in a placement that is designed for patients with psychiatric conditions which she does not have. W is reasonably near to LT’s family home and will be a setting that is better suited than a busy psychiatric unit for her to have contact with her mother and sister.”
Mr Justice Poole said the local authority and Guardian had agreed that it would be very unsafe for LT currently to return home. The restrictions currently necessary to keep her safe could not be effectively put in place at her family home, he added.
The judge admitted that the transfer of LT to W Children’s Home would be “fraught with difficulty”, with LT wanting to go home and currently reacting violently when her wishes were frustrated. A social worker was to speak to LT about the proposed move over the weekend, to show her a virtual tour of the new placement, and to answer any questions she might have. Mr Justice Poole said he had encouraged the mother, who was able to speak to LT on the unit, to support LT to accept the transfer to W Children’s Home.
“LT can be told that it is not safe for LT to return home at present but, if she is accommodated somewhere where she can be kept safe, then it is possible that there may come a time when she can return home. She can be told that some items from her own home could be taken to W to help her to settle in and that it should be easier for her to have direct contact with her mother at W than it is on the psychiatric unit," the judge said.
Mr Justice Poole highlighted how the local authority had statutory duties to accommodate and safeguard LT who is a looked after child. He cited Lady Black as saying in Re T  UKSC 35At :
“How can a local authority fulfil these duties in the problematic cases with which we are concerned if they cannot obtain authorisation from the High Court to place the child in the only placement that is available, and with the ability to impose such restrictions as are required on the child’s liberty? It is such imperative considerations of necessity that have led me to conclude that the inherent jurisdiction must be available in these cases. There is presently no alternative that will safeguard the children who require its protection.”
Mr Justice Poole said: “Nevertheless, although the inherent jurisdiction must be available in these troubling cases, it cannot be treated as a rubber stamp to authorise the deprivation of a child’s liberty whenever the court is told that there is no other option available. I remain of the view that LT’s continued accommodation in the acute psychiatric admissions unit is not in her best interests, even though no other option is available (at least until Monday 27 September 2021).
“I have reached a different decision in relation to the current application. Having considered the plan for LT to move to W Children’s Home on Monday 27 September 2021, it is clear that the restrictions there will amount to continuous confinement and a deprivation of LT’s liberty, without consent, and that such deprivation will be imputable to the state. I am satisfied that it is necessary and proportionate and in LT’s best interests to be deprived of her liberty there, and for the purpose of her transfer there.”
At the hearing the judge authorised the deprivation of LT’s liberty until 4 pm on 29 September 2021, with the judge reviewing the authorisation at a further hearing at 10.30 am that day, by which time LT should be at W Children’s Home.
The council’s director told the court that the decisions he had now had to make in respect of LT were “some of the most difficult he has had to make in his professional career of over thirty years”.
The judge said: “I fully acknowledge the extreme difficulties faced by all those involved in these decisions, and in caring for LT. This case demonstrates the consequences of the national shortage of secure and other suitable accommodation available for vulnerable children. It has caused avoidable harm to this child, anguish to her mother, stress for numerous professionals and carers, disruption to other vulnerable children and young persons, and avoidable expense to the NHS and the local authority.”
Mr Justice Poole directed that a copy of the second judgment also be provided “to some of those who might be able to address the root cause of the problems this case demonstrates”: the Children’s Commissioner for England; the Secretary of State for Education; the Minister for Children; the Chair of the Care Review; the Parliamentary Under Secretary of State in the Ministry of Justice, Lord Wolfson QC; the Chief Social Worker; and Ofsted.
“It will join a number of similar cases brought to their attention,” the judge said.