Search Results for: Deprivation of Liberty

The TL;DR background on the history here.

Parliament created in s25 Children Act 1989 a statutory mechanism for Court oversight and sanction of situations in which children who are looked after by Local Authorities have their liberty restricted (generally but not exclusively by locked doors). These are called ‘secure accommodation orders’. Children can only be placed in a s25 secure accommodation in a children’s home specifically approved by Ofsted for that purpose.

There’s a national crisis in secure accommodation beds. Demand is massively outstripping supply, and has been for many years. That led to weird situations where children in Southampton were being put in children’s homes in Scotland… If there’s not an available secure accommodation bed for a child, section 25 doesn’t solve the problem. What you need is more secure beds. BUT if you don’t have them, what then?

This led to a workaround whereby the inherent jurisdiction of the High Court (what some oafish commentators label ‘magical sparkle powers’) were used to authorise a child being placed somewhere where their liberty was restricted but NOT in a children’s home approved by Ofsted for that purpose.

That was a sticking plaster and the High Court has been publishing judgments for at least four years saying that this needs a better solution and shouting it from the rafters.

The issue went up to the Supreme Court, who ruled that the use of inherent jurisdiction for that purpose was lawful.

The Government made some new Regulations – unfortunately, these weren’t ‘we’re building 20 new secure children’s homes’ but instead ‘we’re closing down the bit of the old regulations that allowed Local Authorities to place children in these creative placements, so rather than solving the problem, they instead said “we don’t like the bandaid that the High Court is using as a last resort, so we’re going to make it unlawful for Local Authorities to use band-aids”

There’s now litigation as to whether the High Court can use their inherent jurisdiction to say that THEY the High Court can say that they approve the bandaid (even whilst knowing that this doesn’t allow the Local Authority to use it) – which the High Court has said yes sort of on, and now this particular case grapples with that in more detail. (I think the hope had been that Ofsted would be invited to grant a temporary approval for individual placements)

BEDS NOT BANDAIDS and DOWN WITH THIS SORT OF THING

The TL;DR is so long it needs its own TL;DR

Not enough secure beds, the loophole the High Court worked around was closed, the loophole to work around the closing of the loophole is being litigated about here.

Sorry, this is pretty dull for non-lawyers. Hopefully there will be a less technical case to write about soon.

Derby CC v CK & Ors (Compliance with DOL Practice Guidance) (Rev1) [2021] EWHC 2931 (Fam) (03 November 2021)

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2931.html

This judgment concerns a further question that has now arisen in three cases, including FD21P00578, concerning the range of circumstances in which the jurisdiction I found subsists may be applied.  Namely, whether, given the central role accorded to the President’s Guidance by the Supreme Court in Re T and by this court in Tameside MBC v AM & Ors (DOL Orders for Children Under 16), it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the Practice Guidance.  The spectrum of the submissions made to the court on this question has been bracketed at one end by the submission of each of the local authorities that the answer to this question is “yes”, and at the other by the submissions of the Secretary of State for Education and Ofsted that the answer to this question is “no”.  Whilst each of the cases before the court concerns a child under the age of 16, the answer to the question posed in this case is applicable to all cases in which the Practice Guidance applies

Do you know, I sort of agree with both sides here. Without an injection of fresh beds, the use of inherent jurisdiction is the only way to find the most vulnerable children that we deal with beds that they need, so yes. But the use of inherent jurisdiction to workaround a bed shortage and sidestep the clear provisions of s25 is wholly wrong in my opinion, so no. Of course, the vexing thing is that the High Court’s middle ground of using inherent jurisdiction whilst shouting for help is the best course of action but the cries for help were heard and not ignored. The High Court were basically saying, “we’re shipwrecked and it is of course wrong to eat the ship’s cat, but if it keeps the crew alive until rescue comes, it is the best of a bad situation’ and the Government are saying ‘we’ve seen your flares and we’ve sent you some leaflets from the RSPCA and PETA rather than a rescue ship’

Anyway, I should also tell you that much like the film Dune, this case does not conclude matters, and there’s going to be a part 2. This Part 1 looks at whether the Court has the legal power to sanction a placement of a child under the inherent jurisdiction where the placement would be unlawful under the new Regulations. Part 2 will look at the circumstances of the individual four cases that have been joined together and what should happen in relation to each.

63. Having regard to the comprehensive submissions made by leading and junior counsel, and the legal provisions set out above, I am satisfied that an unwillingness or inability to comply with the terms of the President’s Practice Guidance does not act per se to oust the inherent jurisdiction of the High Court to authorise the deprivation of a child’s liberty in an unregistered placement confirmed in Re T.

64.However, I am equally satisfied that compliance with the Practice Guidance is central to the safe deployment of that jurisdiction and to its deployment in a manner consistent with the imperatives of Art 5. Within this context, whilst accepting that an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, I am satisfied that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply for registration. My reasons for deciding are as follows.

65. The first point that the court must acknowledge at the outset is that there remains no entirely satisfactory child-centred answer to the question before the court in the absence of a concerted effort by those responsible to remedy the current acute shortage of clinical provision for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive clinical environment, of secure placements and of registered placements. The Practice Guidance was promulgated by the President of the Family Division to assist in addressing an urgent and acute problem borne of this lack of resources. On the one hand, failure to follow the Practice Guidance will deprive children of the regulatory protection Parliament has deemed they should benefit from. But, in the context of the continuing and acute shortage of appropriate resources, following the Practice Guidance can risk a vulnerable looked after child having nowhere to go. The dilemma is eloquently described in the written submissions of Ms Morgan and Mr Paisley on behalf of QV:

“[37] There is a circularity which is, for the guardian as she contemplates the position for QV in this case and similarly placed young people in others, problematic. It is a circle which is impossible to square: the Guardian all things being equal would make the submission that the solution at which the Court should arrive if it concludes that the relevant body ‘won’t’ apply to register or is failing to comply or is dragging its corporate feet in relation to the President’s Guidance or is quite simply making use of the jurisdiction because it remains available to it and is the path of least resistance would be for the Court to say in effect ‘thus far and no further’ and to bring it to an end. That would be in all likelihood, a way in which the difficulties (which to return to the beginning are difficulties of resource above all else) move from the arena of the court where they should not be and into the province of others. Such an approach however comes at a cost; and the cost is paid by the cohort of vulnerable children and young people for whom there is then nothing in the way of a protective jurisdiction at all. So it is that the Guardian steps away from the otherwise obvious submission that the Court should stand firm; should pursue the reasoning at [62] in Wigan BC v Y to its logical conclusion; should refuse to sanction the jurisdiction. The welfare of this or another subject child is nowhere in that approach never mind paramount or primary.”

Compliance or non-compliance with Practice Guidance is not determinative of the existence of the court’s substantive jurisdiction. This is, I am satisfied, the plain position as a matter of law. The President’s Practice Guidance is non-statutory guidance. The Practice Guidance is not a Practice Direction, and even if it were, the authorities are clear that a Practice Direction cannot change the law. Further, as Lieven J made clear in Birmingham City Council v R & Ors at [19], the President cannot create law by way of issuing guidance. Within this context, I am satisfied that failure to comply with judicial practice guidance cannot oust the inherent jurisdiction of the High Court. The existence of the protective jurisdiction of the court does turn on conformity with a procedural requirement or requirements set out in practice guidance. The question for the court in such circumstances is whether that jurisdiction should be exercised where there has been non-compliance with the Practice Guidance.
It is important at this point to reiterate, as Mr Auburn sought to remind the court at a number of points during the course of his submissions on behalf of the Secretary of State, the question that is before the court. Namely, whether it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the Practice Guidance. As I have already noted, I am satisfied for the following reasons that, ordinarily, the answer to this question should be ‘no’. There is of course a further question of what is meant by ‘will not or cannot’. I deal with that question in more detail below.

There’s a lot of text here, but the answer to the question

“where the placement proposed is one which will not or cannot comply with the Regulations, can the High Court use their inherent jurisdiction and place there?”

is “ORDINARILY NO”

There’s quite a bit of text on ‘will not or cannot’ – MacDonald J says that it turns on its own facts, but makes some general observations.

80. An unwillingness or inability to apply for registration in accordance with the Practice Guidance does not act to extinguish the court’s inherent jurisdiction. Rather, it borders and curtails the circumstances in which that jurisdiction can be deployed. Within this context, and having regard to the judgment of the Supreme Court in Re T and the matters to which I have referred above, I am satisfied that whilst an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, the court should not ordinarily countenance the exercise of the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply expeditiously for registration.
81. As noted above, my conclusion invites the question what does “cannot or will not” mean in this context? It is not helpful or appropriate in my judgment to set out an exhaustive list of cases that will fall into one or other of these categories. Each case will turn on its own facts. However, some general observations can be made.
82. A provider that will not apply for registration, in the sense of refusing to do so, notwithstanding the terms of the Practice Guidance is unlikely to be a viable option for meeting the subject child’s best interests. Such a refusal by a provider is, in reality, a statement of intent not to comply with the law put in place by Parliament to safeguard and promote the welfare of the subject child through the imposition of a comprehensive and wide ranging regulatory regime. Given the burden placed on providers by an application for registration, such a position on the part of the provider may be understandable if the provider does not ordinarily make such provision, for example a private landlord, the owner of a holiday park or other venue not ordinarily involved in social care. However, it is placements in this category that are most likely to result in a wholly unsuitable placement for obvious reasons. Within this context, a refusal by a provider to apply for registration immediately following a placement deprives the child for the duration of that placement of regulatory oversight where it is arguably most needed. In the context of the cases before the court, the local authority considers that the placement for QV, a holiday park, will not consent to an application being made to Ofsted for registration.
In the circumstances, and whilst each case falls to be considered on its own facts, it is unlikely in the context of a refusal by a provider to apply for registration that the court will conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child with that provider is in the child’s best interests. In such circumstances, the court may be required to make a very short order (measured in hours or days and not weeks) to hold the ring whilst alternative arrangements are put in place. This will particularly be the case where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe and the unregistered placement is the only means of achieving this (referred to as ‘in the moment cases’ in by Fordham J in R (on the application of Matthew Richards) v Environment Agency and Walleys Quarry Limited [2021] EWHC 2501 (Admin) at [50]). The operational duty of the court in such circumstances is to keep the child safe, however any authorisation given for a deprivation of liberty in that situation should be for the least time possible and a timetable for the identification of a placement that is registered or willing to apply for registration set by the court, registration of the placement being essential to ensuring that the child is kept safe in the medium and long term.
I accept that the Practice Guidance contemplates at [21] that registration may be refused following an application being made or that an application for registration may be withdrawn, and that the Guidance does not expressly prohibit the continuation of an unregistered placement in such circumstances. However, in my judgment, this does not detract from my overall conclusion that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not comply with the requirement of the Practice Guidance to apply for registration.
A person carrying on or managing a children’s home must apply for registration as a matter of law. Within this context, there is in my judgment a stark difference between a provider who makes an application and fails in the first instance (the chances of which can be significantly reduced by working in partnership with and taking advice from Ofsted once the application has been submitted) and the provider who refuses to apply or cannot apply. In the former situation, an attempt has been made to bring the child back within the regulatory regime mandated by Parliament, albeit that attempt has been unsuccessful. In such circumstances, the regulator has had a chance to consider the placement and the court must factor in the result when determining for the purposes of the Practice Guidance 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, and in particular whether, on the advice of the regulator, changes can be made to ensure a successful registration application in due course. In the latter situation, there has not even been an attempt to bring the child within the statutory regulatory regime, notwithstanding that that is what the law requires, with no opportunity for the independent regulator to consider the placement (because no application is made) and with the result that the child remains outside the statutory regulatory regime for the duration of the placement.
I also accept that, in light of the acute resource issues that have been the subject of other judgments handed down by this court and by other judges of the Family Division, cases may arise where an unregistered placement will not comply with the Practice Guidance with respect to an application for registration but no alternative placement is immediately available. Again, I am satisfied that this does not detract from my overall conclusion that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not comply with the requirement of the Practice Guidance to apply for registration under the statutory regime.
Again, it is important to remember that a person carrying on or managing a children’s home must apply for registration as a matter of law. In such circumstances, not to insist on compliance with the Practice Guidance would be to permit the providers who are unwilling to comply with the law to benefit from the lack of resources. Further, a child’s best interests falls to be evaluated taking into account all relevant circumstances. Whilst the absence of a placement may place the child at risk, the court must also take account of the fact that it is likely to be antithetic to a child’s best interests to be deprived of the protections of the statutory regulatory regime mandated by Parliament. Within this context, in the experience of this court, the providers that are unwilling to apply for registration of those offering placements that are the most problematic for vulnerable children in respect of which the court most regularly encounters a refusal to apply for registration, examples including holiday parks, private Air B&B properties, caravans and canal boats. These expose the child to a double deficit in the form of a sub-optimal placement that is also outwith the statutory regulatory regime designed to safeguard him or her. In such circumstances, for the court to acquiesce in the face of a refusal of a provider even to seek registration is to heighten significantly the risk to the highly vulnerable subject child.
Again, whilst each case turns on its own facts, it is unlikely in such circumstances that the court will conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child in that placement is in the child’s best interests. Rather, in such cases and accepting the difficulties created by resource issues, after hearing the matter the court is likely to indicate its intention to refuse the application for authorisation and invite the local authority to present alternative proposals (as this court did in Wigan MBC v W, N & Y [2021] EWHC 1982 (Fam)). Again, in such circumstances, the court may be required to make a very short order (measured in days and not weeks) to hold the ring whilst alternative arrangements are put in place. Again, this will particularly be the case where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe and the unregistered placement is the only means of achieving this in an ‘in the moment’ case. Again, any authorisation given for a deprivation of liberty in that situation should be for the least time possible and a timetable for the identification of a placement that is registered or willing to apply for registration set by the court, registration of the placement being essential to ensuring that the child is kept safe in the medium and long term.
With respect to providers that “cannot” apply for registration, on behalf of Ofsted Ms Clement submitted that Ofsted does not recognise such a category, any person carrying on or managing a children’s home being required to apply for registration and any other placement not requiring registration because it is not a children’s home. Within this context, Ofsted contend that there is no such category of placements that “cannot” apply for registration. There is considerable force in that submission. However, in so far as a provider determines not to apply for registration because it could, for example, never meet the requirements to successfully apply, the court will be left in a similar position to that it finds itself in in respect of providers that will not apply. Once again, the child would be left outside the statutory regulatory regime for the duration of the placement as an application to Ofsted would never be made. Once again, this is not likely to be in the subject child’s best interests for the reasons set out above. If there are no steps being taken to regularise the position by applying for registration contrary to the Practice Guidance, the placement cannot be brought back at any point within the regulatory regime that Parliament has determined is required to meet the child’s needs. The inherent jurisdiction should not be used in circumstances which lead to the perpetuation of such an outcome. Again, the court may be required to make a very short order (measured in days and not weeks) to hold the ring whilst alternative arrangements are put in place, particularly where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe.
Providers who are in the process of an application obviously fall into a different category. The Practice Guidance makes clear that it accommodates the process of seeking registration and the possibility that registration may be refused or the application withdrawn. But where there is a continued failure to prosecute an application for registration despite a stated intent to do so, once again the court may find itself in a position where it cannot extend the authorisation depriving the child of his or her liberty in circumstances where the placement continues to be outside the regulatory regime. That the Practice Guidance sets out timescales in respect of the application for registration (which timescales I shall return to in more detail below) indicates that the effort to secure registration, and thus an order authorising under the inherent jurisdiction the deprivation of the child’s liberty in an unregistered placement, cannot be open ended. The requirement to make an application for registration and the timescale for doing so serves to ensure that deployment of the inherent jurisdiction in association with unregistered placements departs from the statutory scheme’s requirement of a registration to the minimal extent necessary. Within this context, the greater the delay beyond the timescales set by the Practice Guidance the greater the risk that the statutory scheme ensuring the welfare of vulnerable child is undermined.

So it may be that where the home where the child is to be placed (or has been placed) is making an application to be approved by Ofsted under the President”s guidance, the Court might say that this is NOT a placement which WILL NOT OR CANNOT be approved under the Regulations, and thus the inherent jurisdiction MIGHT be used. But where the application has not been made in good time, or been refused, the inherent jurisdiction isn’t going to work.

Basically, we’re not eating the ship’s cat unless the cat itself asks the RSPCA whether it would be okay, but there’s no rations or rescue boat coming.

In practice what this means is that the supply increase that the High Court had jury-rigged as a solution to an out-of-control crisis in bed supply has been almost completely shut down, so now the bed supply which was already nowhere near enough has just got a whole lot smaller. Luckily for everyone, solving supply chain shortages is the number one success story of this Parliament, so no need to worry..

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.