“As shameful as this one is”

A case like this has been coming for a while. I’ve been writing for a long time about the crisis in welfare secure beds and the tendency as a result of chronic shortages in such beds for the High Court to be asked to approve placements exercising powers that are all but secure accommodation in name (and sometimes even greater ones) when the units are not Ofsted-approved for such secure accommodation.

We have finally reached a point where a High Court Judge, even faced with no other option for the child, decided that approval of the existing regime under inherent jurisdiction would be wrong, and indeed a breach of the child’s article 3 rights.

Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 (Fam) (14 July 2021) (bailii.org)

Judgments given by a court should be sober and measured. Superlatives should be avoided. It is likewise prudent that a judge carefully police a judgment for the presence of adjectives. However, and as the hearing proved, in this case it is simply not possible to convey the appropriate sense of alarm without recourse to such language. In this case, having observed that in his thirty years at the Bar he had never been in a position of having to ask a court to authorise a regime for a child “as shameful as this one is”, Mr Martin conceded on behalf of the local authority that, boiled down to its essence, his submission was simply that the court must today prefer the lesser of two acknowledged evils, the hospital ward or the street, in circumstances where there is currently no alternative placement. But that is not a solution that can be countenanced in a civilised society. The test laid down by the law is not which is the lesser of two evils but what is in the child’s best interests having regard to the child’s welfare as the paramount consideration. The parens patriae inherent jurisdiction of the court is protective in nature. As I have observed above, it would border on the obscene to use a protective jurisdiction to continue Y’ current bleak and dangerous situation simply because those with responsibility for making proper provision for vulnerable children in this jurisdiction have failed to discharge that responsibility.

We know that the Supreme Court are to hear an appeal in relation to secure accommodation, Re T. Even if they are to go far further than I could envisage them doing and declare that the Government is breaching the article 3 rights of extremely vulnerable children by not providing sufficient welfare secure beds (and i really don’t think they will go that far), this isn’t a short-term fix. Even if they did that, and the Government accepted it and did something about it, planning, building, approving and staffing the twenty additional secure units that the system really needs is going to take years.

Why is demand for welfare secures so high? Well, in part because brand new concerns have arisen over the last ten years. Nobody was welfare securing children to protect from radicalisation, county lines or systematic grooming ten years ago. The problems with mental health and mental welfare of children has also increased considerably in that time. The favouring by units of criminal beds has also been a fairly recent phenomenon.

In looking at this case, I will describe some of Y’s problems first:-

“On 3 July 2021, Y attempted to strangle himself at the residential placement using a phone charger cable. Y was conveyed to the Emergency Department at the [named hospital] where he presented as agitated and combative on arrival. The history given at the Emergency Department was that care home staff had found Y distressed and threatening to kill himself. He had a screwdriver which he had used as a tool to self-harm and was blue in the face with a cord around his neck which they removed. Y was said to have had fought out against them and assaulted them by spitting and hitting them.

On arrival of the CAMHs practitioner at the emergency department Y was in full restraint with several police officers and staff. His legs were strapped together and his face covered with a guard to prevent him from spitting and biting. On the advice from the CAMHS practitioner, Y was given IV lorazepam following a discussion with the psychiatric consultant, Dr Amdan. Y was admitted to a paediatric ward.

The [named hospital] is not CQC registered to provide mental health care and does not have staff trained to provide physical restraint. During the course of the hearing Ms Davies on behalf of the hospital Trust reiterated that staff on the ward do not have the training or expertise or manage the challenging behaviour that is exhibited by Y and no training in the deployment of physical restraint techniques. Within this context, the local authority agreed to provide trained staff to undertake these tasks. Ms Davies contends however, that there have been difficulties with both the attendance of and the qualifications of the staff provided by the local authority. This has resulted in the Trust having to make frequent calls to the duty social worker in relation to the care provision for Y.

On 4 July 2021 at 3pm Y absconded from the ward following a further incident in which he had become aggressive and combative with staff. Y was recovered to the ward by police, social workers and security staff. He was returned to the ward in handcuffs. Upon removal of the handcuffs, Y crawled under the hospital bed and attempted to bring the bed mechanism down on himself. He was pulled out from under the bed by police and restrained on a mattress situated on the floor. The handcuffs were re-applied by the police at this point. Following this, Y had several incidents of holding his breath”

The current staffing ratio for Y is five to one. He is not able to have a proper bed, a pillow or a sheet. When he showers, the door to the shower has been removed, affording him no privacy. He is having regular intravenous tranquilsers administered, at the maximum dosage that doctors consider safe.

HE IS TWELVE YEARS OLD.

It is impossible to read any of this without feeling a deep sense of shame that this country has been allowing a damaged 12 year old boy to be treated in this way.

“HHJ Singleton QC extended the order authorising the deprivation of Y’ liberty on the hospital ward, the restrictions authorised comprising 5:1 supervision on the ward, the use of physical restraint and the use a fast acting tranquiliser administered intramuscularly if efforts to gain his co-operation proved impossible. HHJ Singleton QC expressly deprecated the use of handcuffs on Y as a method of restraint.

Y currently remains contained on the ward in a sectioned off area. The doors to the paediatric ward have been securely shut and the area cleared of all movable objects. The door to the shower in which he washes himself has been removed, and therefore Y has no privacy at all when showering or dealing with other aspects of his hygiene. He is at present sleeping on a mat on the floor and he is unable to have a pillow, or a sheet due to the risk of self-harm and suicide. Y is still being prescribed daily intra-muscular Olanzapine, which is an anti-psychotic, the hospital taking the view that without this chemical sedation Y’ behaviour would be simply unmanageable. Y does not socialise. In stark contrast to every other case of this nature that has recently come before this court (none of which involved placement on a hospital paediatric ward rather than in a residential setting), neither the evidence contained in the bundle nor the submissions made by the advocates identifies any positives with respect to Y current parlous situation, whether with respect to improvements in his behaviour, his relationships with staff or otherwise. His assaults on staff are frequent, violent and cause injuries to both Y and the staff.

The primary purpose of a paediatric hospital ward is to treat children, not to deprive them of their liberty by means of locked doors, sparse belongings and chemical restraint. There is now no clinical basis for Y to be on the hospital ward and he is medically ready for discharge. There is therefore also now no connection at all between purpose of the hospital ward on which Y is held and the deprivation of Y’ liberty. Within this context, Y currently remains contained on the ward in a sectioned off area that is not designed to restrict the liberty of a child but rather to provide medical treatment to children. The doors to the paediatric ward have been securely shut and the area cleared of all movable objects. Accordingly, not only is there no connection at all between purpose of the hospital ward on which Y is held and the deprivation of Y’ liberty, but the arrangements that are in place to restrict his liberty in that setting are, accordingly and necessarily, an entirely ad hoc arrangement that is not, and indeed can never be, designed to meet his needs.

The door to the shower in which Y washes himself has been removed, and therefore Y has no privacy at all when showering or dealing with other aspects of his hygiene. It must be beyond reasonable dispute that, whilst aimed at preventing him from harming himself, this is a grossly humiliating situation for a 12 year old child to be in and one that presents him with an invidious choice between embarrassment and the maintenance of personal hygiene. It would likewise appear that Y has no means of ensuring privacy on the ward when getting dressed and undressed. Added to this indignity, Y must at present sleep on a mat on the floor and he is unable to have a pillow, or a sheet due to the risk of self-harm and suicide. Y does not socialise. It is unclear on the evidence before the court how Y takes his meals or how he maintains any form of daily routine more generally. Once again, these ignominies have their roots in the fact that a paediatric hospital ward is simply not equipped to undertake the task that circumstance, and an acute lack of appropriate resources, has assigned to it.

I accept the submission of the Children’s Guardian that a further consequence of the paediatric hospital ward being a wholly inappropriate venue for the deprivation of Y’ liberty is that there is an increased risk that the restrictions authorised by the court as lawful risk being regularly exceeded in an attempt to manage Y in an inappropriate setting. There is indeed evidence that this has taken place in circumstances where, for example, Y has been deprived of a bed, pillow and blankets, where on occasion physical restraint is taking place by staff who are not properly trained and, whilst HHJ Singleton QC authorised the use of “fast acting tranquilisation” as a means of chemical restraint when efforts to gain Y’ consent fail, where the current regime of chemical restraint cleaves closer to that of constant sedation. This is not the result of malice or negligence but simply of an increasingly desperate attempt to contain Y in a situation that is not designed, in any way, for that purpose.

Further, and within this context, the fact that the hospital ward is a wholly inappropriate venue for the deprivation of Y’ liberty forces medical staff to step outside the normal safeguards that are put in place in that environment. As I have noted, Y is still being prescribed daily intra-muscular Olanzapine, which is an anti-psychotic, the hospital taking the view that without this chemical sedation Y’ behaviour would be simply unmanageable. However, as Dr SH has made clear, a medication plan is not in place nor set out for the Trust to follow, the Trust is not CQC registered to provide mental health services, paediatricians on the ward are not experienced at prescribing anti-psychotics and other psychiatric medication to patients and, in that context, the only guidance available is that provided by the Alder Hey medication protocol. All these factors in my judgment increase the risk to Y of being harmed by the restrictions that are in place.

In stark contrast to every other case of this nature that has come before this court, neither the evidence contained in the bundle nor the submissions made by the advocate identifies any positives with respect to Y current parlous situation, whether with respect to improvements in his behaviour, his relationships with staff or otherwise. His assaults on staff are frequent, violent and cause injuries to both Y and to the staff who are doing their utmost to care effectively for him. In this context, I accept the submission of Mr Jones that whilst the arrangements in cases such as Lancashire v G (Unavailability of Secure Accommodation) [2020] EWHC 2828 (Fam) or Tameside MBC v L (Unavailability of Regulated Therapeutic Placement) [2021] EWHC 1814 (Fam) were sub-optimal, and in certain respects inappropriate, Y’ current situation is orders of magnitude more severe having regard to the matters that I have set out above.

Having regard to the matters set out above, I cannot in good conscience conclude that the restrictions in respect of which the local authority seeks authorisation from the court are in Y’ best interests, having regard to Y’ welfare as my paramount consideration. Indeed, I consider that it would border on the obscene to use the protective parens patriae jurisdiction of the High Court to authorise Y’ current situation. I am further satisfied that this conclusion is not altered by the fact that, as at 12 noon yesterday, there was no alternative placement available capable of meeting Y’ needs. In this case, I consider that the current arrangements for Y are so inappropriate that they constitute a clear and continuing breach of his Art 5 rights. Within this context, the fact there is no alternative cannot by itself justify the continuation of those arrangements. All the evidence in this case points to the current placement being manifestly harmful to Y. Within that context, the absence of an alternative cannot render what is the single option available in Y’ best interests and hence lawful.

In circumstances where I am satisfied that the current arrangements for Y constitute a breach of his Art 5 rights, it is not necessary for me to go on to address the submission that Y’ Art 3 right not to be subjected to torture or to inhuman or degrading treatment or punishment has also been breached in this case. A given situation will cease to be in a child’s best interests long before that situation meets the criteria for a breach of Art 3 of the ECHR. However, I would observe that, whilst the threshold is a high one, there is considerable force in the argument that Y’s current situation as described above breaches Art 3 in circumstances where treatment is inhuman or degrading for the purposes of Art 3 if, to a seriously detrimental extent, it denies the most basic needs of any human being, particularly were Y’ current parlous situation allowed to persist for any longer.

The foregoing conclusions of course lead inexorably to a stark question. What will now happen to Y? The answer is that local authority simply must find him an alternative placement. Y is the subject of an interim care order and therefore a looked after child. Within this context, the local authority has a statutory duty to under Part III of the Children Act 1989 to provide accommodation for Y and to safeguard and promote his welfare whilst he is in its care. More widely, and again as made clear by Sir James Munby in in Re X (No 3) (A Child) [2017] EWHC 2036 at [36], Arts 2, 3 and 8 of the ECHR impose positive obligations on the State, in the form of both the local authority and the State itself. Art 2 contains a positive obligation on the State to take appropriate steps to safeguard the lives of those within its jurisdiction where the authorities know or ought to know of the existence of a real and immediate risk to life. Art 3 enshrines a positive obligation on the State to take steps to prevent treatment that is inhuman or degrading. Art 8 embodies a positive obligation on the State to adopt measures designed to secure respect for private and family life. Pursuant to s.6 of the Human Rights Act 1998, and within the foregoing context, it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Within this context, the court has discharged its duty, applying the principles the law requires of it, to give its considered answer on the two questions that fall for determination on the local authority application. That answer is that it is not in Y’ best interests to authorise his continued deprivation of liberty on a paediatric ward. The court having discharged its duty, the obligation now falls on other arms of the State to take the steps required consequent upon the courts’ decision, having regard to mandatory duties imposed on the State by statute and by the international treaties to which the State is a contracting party.

CONCLUSION

For the reasons set out in my judgment, I decline to authorise the continued deprivation of liberty of Y on the paediatric ward at [the named hospital]. Given the conditions in which Y is currently deprived of his liberty, which I am satisfied breach Art 5 of the ECHR, it is simply not possible to conclude that the restrictions that are the subject of the local authority’s application are in his best interests, even where there is no alternative currently available for Y.

Judgments given by a court should be sober and measured. Superlatives should be avoided. It is likewise prudent that a judge carefully police a judgment for the presence of adjectives. However, and as the hearing proved, in this case it is simply not possible to convey the appropriate sense of alarm without recourse to such language. In this case, having observed that in his thirty years at the Bar he had never been in a position of having to ask a court to authorise a regime for a child “as shameful as this one is”, Mr Martin conceded on behalf of the local authority that, boiled down to its essence, his submission was simply that the court must today prefer the lesser of two acknowledged evils, the hospital ward or the street, in circumstances where there is currently no alternative placement. But that is not a solution that can be countenanced in a civilised society. The test laid down by the law is not which is the lesser of two evils but what is in the child’s best interests having regard to the child’s welfare as the paramount consideration. The parens patriae inherent jurisdiction of the court is protective in nature. As I have observed above, it would border on the obscene to use a protective jurisdiction to continue Y’ current bleak and dangerous situation simply because those with responsibility for making proper provision for vulnerable children in this jurisdiction have failed to discharge that responsibility.

Once again, the difficulty in this case is that a child requires urgent assessment and therapeutic treatment for acute behavioural and emotional issues arising from past abuse within a restrictive clinical environment but no such placement is available. Once again, these difficulties are further exacerbated by the problems that arise when seeking to distinguish between psychiatric illness and the psychological impact of trauma for the purposes of the application of the domestic mental health legislation.”

1. 
   Two further matters call for comment. Whilst the focus of this court is, and has to be, on the welfare of Y, it cannot be ignored that the situation that has arisen in this case by reason of an acute lack of appropriate resources for vulnerable children in Y’ situation has impacted severely on many other children and families. In this case the absence of appropriate resources has resulted in many other children being denied planned surgery, being diverted to hospitals further from home at a time of illness and anxiety and in disruption to the paediatric care arrangements for an entire region of the United Kingdom. Within this context, the adverse impact of the lack of appropriate provision that the courts have to wrestle with week in and week out in cases of this nature is now also impacting on the health and welfare of children and families who have no involvement with the court system.
2. Finally, I wish to make clear that nothing that I have said in this judgment constitutes a criticism of the doctors, nurses, social workers, police and other professionals who have been required to engage with Y. They have, I am satisfied on the evidence before the court, tried to do their best in a situation in which they should never have been placed. All those involved have done their level best in a situation that has bordered on the unmanageable. In so far as fault falls to be apportioned, it must settle on those who have not made the provision required to address the needs of highly vulnerable children such as Y.
3. It is, once again, my intention to direct that a copy of this judgment is provided to the Children’s Commissioner for England; to Lord Wolfson of Tredegar QC, Parliamentary Under Secretary of State for Justice; to the Rt Hon Gavin Williamson CBE MP, Secretary of State for Education; to Josh MacAllister, Chair of the Review of Children’s Social Care; to Vicky Ford MP, Minister for Children; to Isabelle Trowler, the Chief Social Worker; and to Ofsted.
4. That is my judgment.

What happens next for Y? Well, it isn’t at all clear. A proper secure unit, that has trained staff, if one can be found, a proper children’s psychiatric unit, if one will take him.

Y is probably the worst example that we’ve seen, but make no mistake. This is a nationwide crisis, and a crisis for which it is hard to find a fast solution. Specialist psychiatric children’s units that offer trained staff and trained support for children in crisis, regardless of whether their extreme behaviour emerges from a mental health condition or as a result of experienced trauma would be my suggestion, but that’s expensive, and won’t happen overnight – the units have to be planned (and believe me, no home owners are happy with the suggestion of planning permission for such units near their homes) and built, and staffed.