X (Secure Accommodation: Lack of Provision), Re

The primary purpose of this judgment is for the court, once again, to draw public attention to the very substantial deficit that exists nationally in the provision of facilities for the secure accommodation of children. There are a number, and it is, sadly, an increasing number, of children and young people under the age of 18 years [‘a child’] whose welfare and behaviour requires that they be looked after within a secure regime which restricts their liberty. These specialist units are limited in number and, at present, the number of secure beds is far out-stripped by the number of vulnerable young people who need to be placed in them. Courts are regularly told that, on any given day, the number of those needing a secure placement exceeds the number of available places by 60 or 70. It is not the role of the courts to provide additional accommodation; all the court can do is to call the problem out and to shout as loud as it can in the hope that those in Parliament, Government and the wider media will take the issue up.

There is a distinction between cases, such as the present, where the court has made a formal ‘secure accommodation order’ under Children Act 1989, s 25 [‘CA 1989’] and other, bespoke, arrangements where the court may authorise the restriction, or deprivation, of a young person’s liberty under its inherent jurisdiction [‘DOL’s cases’]. This judgment is only concerned with the former.

A child may only be kept in secure accommodation if it appears:

Restricting the liberty of a child is a serious step that can only be taken if it is the most appropriate way of meeting the child’s assessed needs [Government Guidance: CA 1989 Guidance and Regulations, Vol 1: Court Orders (2014), para 40]. The approach of the court is that such orders will ‘only very rarely be appropriate’ and ‘must always remain a measure of last resort’ [Re SS (Secure Accommodation Order) [2014] EWHC 4436 (Fam)]. For some children, placement in a secure children’s home will represent the only way of meeting their complex needs, as it will provide them with a safe and secure environment, enhanced levels of staffing, and specialist programmes of support [Government Guidance (2014), paras 40-42].

In order to maintain focus on the wholesale failure to provide adequate resources to meet the needs of these most vulnerable and needy young people, it is neither necessary nor helpful to individualise the details of the particular case that is currently before the court. The young person, her parents, and the local authority responsible for care are, therefore, to remain anonymous. Within the proceedings it is accepted that no criticism can attach to the local authority, or the individual social workers, who have striven to find a suitable secure placement. The point to be made most firmly is that the situation faced by this local authority is one that can be, and is, faced by every other local authority in England and Wales on a regular basis; it is, tragically, the norm. Naming the local authority in this judgment would therefore be an irrelevant distraction.

Further, in order to enhance the public understanding of just how desperate the circumstances of a young person who is found to need placement in secure accommodation may be, it is necessary to describe the history of ‘X’, the subject of the present case, in some detail [‘X’ being a randomly chosen letter in place of her name]. If her distressing personal history is, therefore, to be publicised, it is necessary to enhance the normal degree of anonymity by removing any reference to the geographical context, including the names of the solicitors acting for the various parties.

X is a 15 year old girl. She is an only child. Her father has not actively participated in these proceedings and he has minimal involvement with X. Until 2020, X lived with her mother, her stepfather and two step-brothers.

X has suffered significant trauma and adversity in her childhood. Currently, X has a history of absconding, aggressive and threatening behaviour, self-harm and suicidal ideation. Additionally, X is assessed as having a low IQ, high functioning autism and Attention Deficit and Hyperactivity Disorder (ADHD).

At around age 10, X’s behaviour deteriorated. There were several incidents where she assaulted family members or caused harm to herself. In 2019, when X was 12 years old, social services were made aware of X’s aggressive behaviour towards others at school and her history of absconding. She was then charged with assaulting her grandfather. Multi-agency support was put in place and the situation improved for around 12 months. However, in the Summer of 2020, X became increasingly violent towards her mother and in August 2020 she was charged with assault. In turn, X alleged to the police that her stepfather and mother were violent towards her.

Reports of a deteriorating situation within the family led to the local authority instigating protective measures in October 2020 with X being deemed to be beyond parental control and a risk to herself and others. During the last two weeks of October, at just 13 years old, X absconded from home on four occasions. In November 2020, X was removed to local authority care by the police, after apparently assaulting her mother with a metal bar. Her mother then agreed to X being accommodated by the local authority under CA 1989, s 20.

In March 2021, X was detained under Mental Health Act 1983, s 136 by the police to enable them to take her to a hospital for a mental health assessment. This followed an incident at school where X attempted to jump from the roof. The school also reported that X had had numerous discussions with friends and professionals about ending her life. Whilst she was an inpatient X tried to abscond from the ward, she headbutted and punched the walls and doors and attempted to self-harm by scratching her wounds. She self-harmed using drawing pins, drawing blood from her arm and trying to strangle herself with her sock. X also made threats to kill staff and she damaged furniture.

In April 2021, the local Family Court made a secure accommodation order with respect to X (under CA 1989, s 25) and, X was then moved from the mental health ward and placed in a secure unit in Scotland. For much of her time in the secure placement, X had been on a one-to-one staffing ratio with checks to avoid self-harm occurring once every 5 minutes during the night. The secure accommodation order was extended every three months until April 2022 when it was discharged on the basis that the criteria for such an order were no longer met.

Separately, care proceedings, which had been issued in 2021, concluded with the making of a full care order in April 2022 placing X in the care of the local authority.

Whilst in the secure placement X had undergone a full psychiatric assessment. On the basis of this assessment, on discharge from the secure unit, she moved in April 2022 to a residential placement in England, which was considered to be suited to meet her identified needs. The placement lasted for less than a month, during which there were many occasions on which X placed herself and others at risk of harm. As a result X was detained under MHA 1983, s 2 for assessment. Detention under the MHA 1983 section ended after some 10 days as the assessing psychiatrist advised that X did not present with a mental disorder requiring hospital treatment. She was therefore discharged to a series of unregulated placements in the community, under the supervision with a staffing ratio of five-to-one (staff to child).

The restrictions that were imposed upon X’s liberty during this series of community placements were authorised by the High Court. The initial ‘deprivation of liberty’ [‘DOLS’] order, made in May 2022, authorised the following restrictions:

During her time in these community placements X absconded on four occasions, during which she had a number of sexual encounters with older males. X self-harmed, secreted weapons about herself and regularly threatened staff. On one occasion, in September 2022, X threw hot water over a staff member followed by a cup of urine and menstrual fluid. On another occasion she broke the plastic handle off a metal spoon and, pretending that it was a knife, threatened a staff member. She slashed her wrists and spoke of intending to jump off a local car park. Medical examination confirmed that she had had sexual intercourse during one absconding period.

In October, after being recovered by Police during a period of absconding, X claimed that she had inserted a razor blade into her vagina. She refused to comply with a medical examination to confirm this claim.

At the end of October she moved to the accommodation that she was occupying at the date of the hearings before me in November. That accommodation was an ordinary dwelling in a road in the suburbs of a small city. X was confined to the house and subject to the restrictions that had been authorised by the DOLS order, including continuation of a five-to-one staffing ratio.

In order to convey the extreme nature of X’s behaviour, and the consequent inadequacy of the community placement either to contain her or to meet her needs, I will now quote directly from the social service records for one 18 hour period:

This graphic record clearly demonstrates a number of factors:

Those unfamiliar with the circumstance of children like X may be shocked by the extreme behaviour that is described. The truly shocking aspect to the eyes of judges sitting in the Family Court is that X’s circumstances are not that unusual. There is a cohort of young people who are in extreme crisis to the same degree as X.

Although the point has not been argued before this court, it must be the case that the State has duties under the European Convention of Human Rights, Articles 2 and 3, to meet the needs of these children and to protect them from harm. The positive obligation that arises for public authorities under Arts 2 and 3 in cases such as this was explained by Lord Stephens in the Supreme Court in Re T [2021] UKSC 35 at paragraphs 175 and 176. The discharge of this positive obligation is currently being left to the court and to individual local authorities, yet neither of these agencies has access to the necessary resources to meet this obligation, nor, in the case of the court, the knowledge or real expertise to do so. One consequence of the lack of sufficient secure placements is that local authorities turn to the High Court to authorise a DOLS placement in other accommodation, often at very significant additional cost. Frequently, as the reported judgments describe, and as X’s circumstances demonstrate, the accommodation that is authorised via DOLS is not appropriate to meet the young person’s needs and is simply chosen as being the ‘least worse’, and often the only, option that is available.

Since mid-2022 all new DOLS applications have been issued in, and mainly heard in, London. The statistics are still being collated, but it is likely that the annual total number of DOLS applications may exceed 1,000. Whilst some of these cases may be renewed applications with respect to the same child, the number of cases, given the extremity of the behaviour of each young person and their need for a secure placement, is truly shocking. Many of these applications relate to children, like X, who should be in secure accommodation. The data suggesting that it is regularly the case that there will be, on any given day, some 60 or 70 children for whom a formal secure accommodation order has been made under CA 1989, s 25, yet no registered secure placement can be found, is therefore likely to understate the true position in circumstances where, instead of applying for a secure order (because of the lack of secure placements) local authorities simply by-pass the s 25 procedure and apply directly to the High Court for DOLS authorisation.

In 2019, and again in 2020, the Children’s Commissioner for England published a report on children living in secure accommodation [‘Who are they? Where are they?]. In addition to recording information about those children who are placed within the statutory scheme, either in registered secure children’s homes or in a health service facility, the report shone a light on, what it called, the ‘invisible’ children whose placement is not reflected in the official statistics. The then Commissioner, Anne Longfield described the situation in her 2020 report:

The insight gained by the Children’s Commissioner is important. Her description of the situation is on all fours with the experience of the judiciary hearing these cases, with the court being obliged to sanction a range of less than satisfactory regimes because there is no available provision for placement in a statutorily approved unit. The report demonstrates that the number of children being placed in ‘invisible’ placements, outside the statutory scheme, is increasing and may roughly equal those who can be accommodated in a conventional secure home. On the basis of these figures, the current situation, where the scheme provided by the State is failing to meet the needs of half of the young people who need this level of State protection, is deteriorating so that soon, if not already, more than half of the children will be ‘invisible’ and under the radar.

Returning to the present case relating to X, it was promptly referred back to the High Court. On 6^th November 2022 Mrs Justice Lieven made a secure accommodation order and directed that there should be a further hearing to consider the search for a secure placement for X, the court having been told that there were likely to be difficulties arising from the lack of availability of such places. Although post-dating that hearing, an account of the situation in a statement from X’s social worker demonstrates just how sparse the provision of secure placements is:

Pausing there, those unfamiliar with this jurisdiction may be surprised that the making of a court order authorising the placement of a child in secure accommodation is not immediately followed by that child being placed in a secure children’s unit. When the criminal court passes an immediate prison sentence or makes a hospital order, the defendant is taken straight to a prison or to a secure mental hospital. There is no question of the authorities then having to engage upon a potentially lengthy process to find a placement because there are insufficient prison or hospital places. Neither is there a need for the criminal court to engage with the relevant authorities in establishing and holding on to substitute care arrangements which, because they fall short of ‘secure accommodation’ are, by definition, inadequate to meet the young person’s needs. If there were no prison cells available to house those sent to prison there would be a public outcry; why should the lack of provision of secure units when a court has made a secure accommodation order be any less scandalous.

The situation facing the court and the local authority with respect to X is, unfortunately, typical. In recent years, judges of the Family Division have regularly published judgments seeking to draw attention to the parlous level of provision. In Lancashire County Council v G, N v NHS England and Lancashire and South Cumbria, NHS Foundation Trust [2021] EWHC 244 (Fam), MacDonald J set out extracts from such judgments. In order to illustrate the strength of these judicial observations and the extensive period over which they have been made, I will now reproduce MacDonald J’s list and then add further extracts from cases that post-date Lancashire CC v G.

As long ago as 2017, in Re X (A Child)(No.3) [2017] EWHC 2036 (Fam) at [37], Sir James Munby, the then President, added these strong words to what had already become a matter of judicial comment in previous cases:

In Re M (A Child: Secure Accommodation) [2017] EWHC 3021 (Fam) at [20], Hayden J said:

Sitting in the Court of Appeal in Re T (A Child) [2018] EWCA Civ 2136 at [2], as President, I said:

In Re B (Secure Accommodation Order) [2019] EWCA Civ 2025 at [6], the Court of Appeal observed:

In Dorset Council v E (Unregulated Placement: Lack of Secure Placements) [2020] EWHC 1098 (Fam), His Honour Judge Dancey said at [42]:

In Z (A Child: DOLS: Lack of Secure Placement) [2020] EWHC 1827 (Fam) at [23], Judd J said:

In Re S (Child in Care: Unregulated Placement) [2020] EWHC 1012 (Fam) at [3], Cobb J said:

In H (Interim Care: Scottish Residential Placement) [2020] EWHC 2780 (Fam) at [85], Cobb J said:

In the Supreme Court in Re T [2021] UKSC 35 at [166], Lord Stephens, setting out the context of the appeal, described the lack of provision as scandalous:

In Lancashire County Council v G, N [2020] EWHC 3280 (Fam), MacDonald J said:

“27.

Amongst the fundamental principles reflected in the foregoing passage is that the development of children and the development of society are intrinsically and inseparably linked. As was recognised in the American case of Brooks v Brooks 35 Barb at 87-88 in 1861, the sound development of the child in all aspects is indispensable to the good order and the just protection of society. Human society benefits from the addition of the child as a member of that society, but the child and society will also suffer if society then fails to safeguard and promote the welfare of that child where the parents have proved, by reason of circumstance or inclination, unable to do so. G's welfare is the court's paramount consideration. But amongst the reasons that this is so is that the wellbeing of our society is dependent upon the physical, emotional and educational health of our children, including G.

28.

Within this context we have a responsibility primarily to G but also to ourselves to ensure her physical, emotional and educational welfare is safeguarded and promoted. This is an imperative course not only in order to maintain dutiful fidelity to the principle that G's best interests are paramount, but also in order to ensure that society endures and develops for the benefit of each and all of its members, including G. At present, society, our society, is failing in that course with respect to G. As recognised by Sir James Munby in Re X (A Child)(No.3), that failure is, and can only ever be, a self-defeating mark of shame for us all.”

In Lancashire County Council v G, N v NHS England and Lancashire and South Cumbria, NHS Foundation Trust [2021] EWHC 244 (Fam), MacDonald J said:

“34.

As a judge, I must assiduously avoid involving myself in matters that are properly the purview of Parliament. Likewise, the judicial role is not that of the polemicist. I have however, taken the judicial oath. In doing so (and as recalled by Sir James Munby P in a similar case in Re X (A Child)(No 3) [2017] EWHC 2036 (Fam) ) I promised to do right by all manner of people according to the laws and usages of this realm. It is very hard, if not impossible, to do right by G, to keep her safe and to work to relieve her enduring and acute emotional pain, when the tools required to achieve that end are simply unavailable to this court. As I have commented in my previous judgments, this places the court in the invidious position of being required by the law of this realm to make decisions that hold G's best interests as the court's paramount consideration but being effectively disabled from doing so by an ongoing and acute lack of appropriate welfare provision for a constituency of the country's most needy, most vulnerable children.”

In Blackpool BC v HT (A Minor) [2022] EWHC 1480 (Fam), MacDonald J at paragraph [19] said:

“The courts have repeatedly emphasised the need for the State agencies engaged in cases of this nature to work co-operatively to achieve the best outcome for the child or young person. Within the context of the question of whether a child or young person should be provided with a placement by the local authority or with Tier 4 CAMHS provision, it is vital that local authorities, Clinical Commissioning Groups (which are responsible for commissioning CAMHS services for children and young people requiring care in Tier 1, Tier 2 or Tier 3) and NHS England (which is responsible for commissioning Tier 4 CAMHS services) recognise the emphasis that is placed by the courts and in the guidance on co-operation between State agencies.”

In Manchester City Council v K (J's Mother), An NHS Trust, J (By her Children's Guardian) [2022] EWFC 121, Poole J said:

“36.

This case, as do many others involving the care of children with complex needs, calls into question the court's role. Very often the court is told that there is only one place where the child can be accommodated. The court's role is therefore very limited. There are no real choices for the court to make. The court cannot direct that placements shall be made available. The court is not a regulator and cannot inspect potential placements or oversee care regimes. On the other hand, even when there are no other placement options, the court does not merely provide a rubber stamp for the restrictions sought, and there are decisions to be made about the extent of the restrictions that are necessary and proportionate and in a child's best interests. However, the courts, like the parties, continue to be confined by the consequences of what Lord Stephens called a "scandalous lack of provision" for which it appears that there is no end in sight.”

It is, of course, not for the courts and the judges to determine matters of policy and the allocation of additional resources with respect to increasing the provision of secure accommodation places to meet the welfare needs of this most vulnerable group of children. All the courts can do is seek to draw attention to the problem in the hope that those who do have responsibility for these matters in Parliament and in Government will take the issue up and look to bring about a change in the current chronic shortfall in secure placements. Despite the regular flow of judgments of this nature over recent years, it is, at least from the perspective of the experienced senior judges who regularly deal with these cases, a matter of genuine surprise and real dismay that the issue has, seemingly, not been taken up in any meaningful way in Parliament, in Government or in wider public debate.

It is against that background that in the order made on 6 November, Lieven J went on to invite The Children’s Commissioner for England to attend the next court hearing, and to direct the Secretary of State for Education to attend by a representative and to serve a statement confirming the position in relation to the provision of secure accommodation for children, the demand in relation to the same and the availability of secure accommodation for X. It was at that stage that the proceedings were transferred for hearing before the President of the Family Division.

Before turning to the further progress of the court proceedings, it is helpful to outline the legal structure and the system by which a particular placement comes to be allocated to an individual child.

The duty to provide accommodation for those children who need it is firmly placed on the local social services authority for the area in which the child ordinarily resides [CA 1989, s 20]. In most ordinary circumstances, there is a general duty, imposed by CA 1989, s 22G, on a local authority to take reasonable steps to place such a child in accommodation that meets his/her needs within the authority’s area. ‘Accommodation’ in this context, where the child cannot be placed in their own family, means placement in foster care or in a children’s home [CA 1989, s 22G(5)].

Whilst every young person who meets the criteria in CA 1989, s 25 for secure accommodation will plainly be a child in need of accommodation and will trigger the duty on the relevant local authority to provide accommodation, there is no requirement for every one of the 152 separate local authorities to have sufficient secure units within their own borough available just in case a secure placement is needed. There are currently 13 secure children’s homes in England; 12 are operated directly by an individual local authority and one is run by a charity.

In 2010, the Department for Education issued statutory guidance ‘Sufficiency: Statutory Guidance on Securing Sufficient Accommodation for Looked After Children’. This guidance expands on what is termed ‘the sufficiency duty’ in s 22G. It is of note that the guidance does not engage with the topic of the provision of secure accommodation at all, save for one passing reference.

To assist individual local authorities in searching for a secure placement, the Secure Welfare Coordination Unit [‘SWCU’] was established by the Department for Education [‘DfE’] in May 2016. The unit, which is funded by the DfE, is operated by Hampshire County Council. The court has received a helpful letter from the Service Lead Manager for the SWCU which explains its role:

The letter goes on to explain that the decision actually to make a placement once one has been identified is taken by the local authority, on the one hand, deciding if what is on offer is suitable for the individual child’s needs, and by the provider of the particular secure unit, on the other hand, deciding to accept that child. Once a referral of a child is live on the SWCU system, it remains live until a placement is found or the referral is withdrawn. Every day each secure unit reports the availability of beds to the SWCU. Homes with a bed that may be available will search the live referrals to identify which young person’s needs are compatible with the home’s resources. The offer of a placement will then be made.

In response to the direction made in the order of 6 November, the court received a letter dated 11 November from the Deputy Director of Looked After Children Placements on behalf of the Secretary of State [‘the DfE letter’]. The letter makes the following points:

The letter then states:

The letter concludes with a report of the current ‘very high volume of referrals’ [73] that are live on the SWCU, before indicating that the Secretary of State considers that ‘it would not be an effective use of public funds’ for counsel to be instructed to attend the planned hearing; the Secretary of State therefore asked to be excused from attendance.

The letter was placed before me. I refused the request for the Secretary of State to be excused from attendance at the hearing on 16^th November.

At the hearing on the 16^th November it was not possible to resolve the pressing issue of identifying a placement in a secure unit for X. It was, however, possible to seek greater engagement from the Secretary of State on the wider issue of the chronic shortfall in the provision of secure welfare accommodation. I am grateful to Mr Jack Holborn, counsel representing the DfE, for engaging in the process, whilst firmly holding to his instructed position.

During the hearing I expressed my disagreement with the central proposition that the Secretary of State had nothing to contribute on this issue. The problem being faced by those trying to find a secure placement for X is not a one-off, it was, I explained, one being shared by the 70 or so others for whom places were being sought that day, and they and their forebears who have faced similar odds for the past decade or so, every time that these and similar statistics are quoted. The lack of secure placements is long-standing and chronic. My view, expressed during the hearing, was that the stance taken by the Department for Education, to the effect that it was not its problem and was the responsibility of individual local authorities, displayed a level of complacency bordering on cynicism. It was, I observed, shocking to see that the Department for Education seemed to be simply washing its hands of this chronic problem.

Whilst accepting that the account of the legal structure that is set out in the letter filed by the Department no doubt correctly described the current statutory system, I commented that that system is palpably not working and had not been working for many years. It must, I observed, surely be for central government to monitor and, if necessary, get a grip upon what is a long-standing national problem.

The judges who sit in the High Court Family Division now spend a fair proportion of their time on cases of this nature, and much of that time is generated because there are not sufficient, suitable secure children’s homes for those who need secure accommodation. I therefore expressed my surprise that the Secretary of State’s response was simply to say that this desperate situation was not her responsibility and, indeed, it would be a waste public money even to engage with the court in considering the mismatch between the demand for secure welfare placements and the supply of them.

During the hearing, on instructions, Mr Holborn accepted the court’s request for the Secretary of State to assist by filing a skeleton argument dealing with the supply and demand for secure children’s home placements. It is fully accepted that these are not judicial review proceedings and there is no formal legal requirement that the court may place on the Secretary of State in this regard. I was, therefore, grateful to Mr Holborn and those who instruct him for understanding and accepting the need for this modest level of engagement. This part of the proceedings relating to X was therefore adjourned to a further hearing on 6^th December.

The skeleton argument prepared on behalf of the Secretary of State for the 6 December hearing includes a number of important passages:

The skeleton argument went on to note that the ‘Care Review;’ [https://childrenssocialcare.independent-review.uk/final-report/] published in May 2022 made a number of relevant recommendations including one for the establishment of 20 ‘Regional Care Cooperatives’, which would take over the commissioning of all children’s social care placements in place of individual local authorities. At the date of the hearing, the Secretary of State was not in a position to state her policy position with respect to that proposal.

Eventually, in December 2022, a place in a secure unit in Scotland was found for X and she is now placed there. Given the geography, this is not the most satisfactory outcome, but it is of note that, once cases of this nature have been transferred to the High Court and the judge has sought to bring pressure to bear on the authorities, a secure placement is often located.

This judgment does not record any decision by the court, either about X or more widely as to the law. As I have said, its primary purpose is for the court, once again, to draw public attention to the very substantial deficit that exists nationally in the provision of facilities for the secure accommodation of children. In drawing to a close, it is simply necessary to reiterate the central message by stressing that very senior judges have, for over six years, been consistently calling for Parliament and government to acknowledge the need for action to address the gross lack of registered secure accommodation units.

Judges are currently being forced to perform functions which are properly the role of government by overseeing the search for suitable placements and by sanctioning ad hoc arrangements in individual cases because there is no placement available in the statutory scheme. Whilst the Supreme Court, in Re T, has held that using the inherent jurisdiction in this manner is lawful, due to the gross lack of secure accommodation provision the High Court is nevertheless having to operate outside the law as it has been made by Parliament and, despite the judge’s consistently asking it to do so, Parliament has seemingly not even discussed this parlous and most worrying situation.

It must be accepted that simply adding to the number of judgments calling for action will not improve the position for young people such as X, but in the present situation, that is all the judges can do. It is a situation that will not change until urgent and effective action is taken by government and Parliament to discharge the obligation that is on the State to protect the country’s most vulnerable children. The submissions made on behalf of the Secretary of State are therefore most welcome. They record, it would seem for the first time, an acceptance by the Secretary of State for Education that, nationally, there are significant problems with the availability of sufficient placements and that ‘this requires action by His Majesty’s Government collectively to support local authorities to meet their statutory needs’. It is to be hoped that this marked change from the approach trailed in the Department’s letter of 11 November does indeed result in action and that the need for the court to hand down judgments of this nature will be a thing of the past.