Deprivation of Liberty Proceedings on behalf of a minor [2017] EWHC 2458 (Fam)

The Local Authority made an Application for permission to deprive the Protected Party (a minor) where there was no secure accommodation available.

The Protected Party was a 13 year old child and had a background of very serious uncontrollable behaviour which had resulted in damage to himself and others. As a result, he had been placed in over six different accommodations for his own and others’ safety. There were a number of occasions where the staff were unable to manage his behaviour or keep themselves and the Protected Party safe.

The Local Authority had repeatedly expressed their wishes to place the Protected Party in an approved secure placement, however these were rare and they were unable to find a suitable home. As a result, they had hoped it would have been possible to place him in a unit which was not deemed an approved secure accommodation. A plan was put in place that meant the Protected Party would stay at the accommodation and if necessary, be subject to considerable restraint, including physical restraint, solely for the purpose of keeping him safe.

Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as Secure Accommodation Orders. Such Orders may be made and, indeed, frequently are made by Courts. It is not necessary to apply to the High Court for a Secure Accommodation Order, however, as there was no approved secure accommodation available, the Local Authority required the authorisation from a Court for the Deprivation of Liberty that the Protected Party would be subjected to.

Mr Justice Holman delivered his concern over the way in which applications of this kind were handled, saying that “the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.”

The Judge ordered that the child now be joined as a party to these proceedings and a guardian must be appointed to act on his behalf. A further hearing was fixed for a months time, as the Judge was concerned the Protected Party had been deprived of his liberty for the past 3 months. The Judge advised further “in view of the gravity of the subject matter and the age of the child, I propose to order that he must be enabled to attend the hearing if he expresses a wish to do so unless the guardian states that in his opinion it would be damaging to the health, wellbeing or emotional stability of the child to do so. In my view it is very important that ordinarily in these situations, which in plain language involve a child being ‘locked up’, the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so. But subject to that exception, if a child of sufficient age, which includes a child of this or any older age, wishes to attend a hearing of this kind, then in my view he must be enabled to do so.”

If you have any queries, please do not hesitate to contact Georgia Clarke or the team at COPCosts@clarionsolicitors.com

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