No one will ever entirely fill the shoes of the late Sir James Munby, one of whose defining characteristics was a willingness to speak truth unto power, especially when it came to those who could not speak for themselves. However, notwithstanding his untimely death, it is important to see that there remain judges who are willing to call out entirely unacceptable situations. One such judge is McKendrick J, who delivered himself of a withering judgment in Re BA (A Child) (DOLS in Hospital) [2026] EWHC 653 (Fam). Over and above the unacceptable nature of the situation with which he was confronted, his opening paragraph also lays bare the scale of a much bigger crisis:
1. An order authorising the deprivation of a child’s liberty is amongst the most serious of orders which judges of the High Court are asked to make. Most of these applications are heard in private and therefore receive little public scrutiny. When sitting in the specialist National Deprivation of Liberty List judges frequently will hear upwards of five or six cases each day. They are routinely listed for an hour and are mostly held by MS Teams remotely. It is therefore necessary for judges to efficiently hear each case and deliver a short ex tempore ruling setting out the reasons for the authorisation of the deprivation of liberty. Reasons are essential to explain the legal and factual basis for the detention. These reasons should set out how the detention complies with the requirements of Article 5 of the European Convention on Human Rights (hereafter “ECHR”) thereby satisfying the court’s obligations pursuant to section 6, Human Rights Act 1998 (hereafter “the 1998 Act”).
2. I heard this case in a busy list on 3 March 2026. I made an order authorising the applicant to be permitted to deprive the child the subject of the application of her liberty until 16 March 2026. I continued the order on 16 March 2026 for a limited further period to permit a transition into an appropriate placement, with the support of her parents. The circumstances of the case are stark for the child, a highly vulnerable thirteen year old girl, anonymised in this judgment as BA. She was discharged from section 3 of the Mental Health Act 1983(hereafter the “1983 Act”) on 11 December 2025. She was then placed in a solo placement with an ancillary deprivation of liberty order made. This placement failed very quickly, she self-harmed and was admitted to an acute hospital. Since early January 2026 BA has been deprived of her liberty in an accident and emergency ward of an acute hospital in London. That is to say she has been detained in a windowless room in a busy hospital for nearly two and a half months. She is accommodated and cared for there, as there is nowhere else to do so. I described this situation at the hearing on 3 March 2026 as intolerable. Intolerable for her, first and foremost. Intolerable for her distraught parents. Intolerable for the many other children who are in state detention in inappropriate settings because of the well-known lack of appropriate facilities to treat the mental health symptoms of highly vulnerable children. It is also unacceptable that a much needed NHS bed is unavailable for want of other more appropriate provision. Open justice requirements led me to conclude a short judgment should be published. (emphasis added).
As McKendrick J identified in the body of his judgment:
23. Despite her dysregulation and challenging behaviour, BA is not detained because she is of unsound mind. She was released from section under the 1983 Act and has been seen by mental health professionals since then and it has not been suggested she requires detention under the 1983 Act. She has not entered the criminal justice system. She is not detained after conviction. She is not detained pre-conviction to be brought before the competent authorities or to prevent her committing crimes or fleeing after having committed one.
Thanks, it appears, in significant part to the efforts of the judge, it was going to be possible to enable BA to be moved to a children’s home (where she would still be deprived of her liberty, but in distinctly less problematic circumstances). In the interim, McKendrick J was persuaded that he could and should authorise the deprivation of her liberty. In the course of reaching that conclusion, he dwelled upon the justification for ECHR purposes:
24. Consistently with Article 5, ECHR the deprivation of her liberty may be authorised for the purposes of educational supervision, see Article 5 (1) (d). I have been surprised sitting in the National DOLS List by the high number of applicant authorities who are unable to provide basic information in respect of the educational supervision being provided to children the subject of an order for the authorisation of the deprivation of their liberty. It appears local authority social work and special educational needs teams work quite separately. It has been necessary to make specific directions against applicant local authorities to ensure the special educational needs team provide information to the court. Basic information about EHCPs, statutory annual reviews and what has taken place for a pupil post exclusion are often absent from the written evidence. Section 19 (1) of the Education Act 1996 places a duty on local authorities to make arrangements for the provision of suitable education for children of compulsory school age who cannot attend school because of illness, exclusion from school or otherwise.
Having set out the case law on the (wide) definition of ‘educational supervision,’ McKendrick J identified that the only basis upon which it was being said that BA’s deprivation of liberty was justified was Article 5(1)(d), and continued:
32. Even adopting the broad definition of educational supervision, it is not clear from the written evidence in these proceedings, what educational provision has been provided to BA since 11 December 2025. It may be said that there are challenges for the applicant to demonstrate it deprived BA of her liberty for the purposes of educational supervision.
33. Anya v University of Oxford [2001] EWCA Civ 405; [2001] ELR 711at paragraph 12 makes clear the need for adequate and intelligible reasons for judicial decisions. This flows both from the common law and Article 6 ECHR. Particular care is needed by a court or tribunal to provide reasons when depriving a person of their liberty. Scrutiny is particularly required when that person is part of a vulnerable cohort (as BA most certainly is) see by analogy Lord Wilson’s dictum in Lee-Hirons v Secretary of State for Justice [2016] UKSC 46at paragraph 23:
We can be proud of the fact that, even in the dark ages, our law recognised the need for strict control of a deprivation of liberty: “no free man”, so King John was obliged to concede in clause 39 of Magna Carta (9 Hen 3), “is to be arrested, or imprisoned … nor will we go against him or send any against him, except by the lawful judgment of his peers or by the law of the land”
…..
The person whom the Minister is depriving of liberty is, as a restricted patient, a member of “a particularly vulnerable group and therefore any interference with their rights must be subject to strict scrutiny” (Zagidulina v Russia, European Court of Human Rights (“ECtHR”), 2 May 2013, Application No 11737/06, para 52). The patient may well be unable to respond to his recall in a manner which, objectively, would best serve his interests.
34. Overall, therefore I am satisfied it is appropriate to grant leave to the applicant to invoke the High Court’s Inherent jurisdiction pursuant to section 100 (3) of the 1989 Act, notwithstanding the existence of the statutory scheme set out in the 1989 Act. I am satisfied that the test in section 100 (4) is met as there is no secure accommodation in respect of which the applicant can apply to seek a section 25 1989 Act order. Secondly, I am satisfied without exercising the court’s powers under its Inherent Jurisdiction BA will likely come to harm by way of self-harming behaviours or the involvement in violent behaviours. She requires educational provision and the provision is a broad package of tuition and a broad range of therapies. This will be provided notwithstanding she is out of school and will be provided having regard to her EHCP. It is absolutely necessary for there to be an order authorising the deprivation of BA’s liberty to provide her with education and therapy to assist her to be kept safe from serious harm. I am satisfied there is no section 25 1989 Act accommodation available and as such the DOLs order in the identified children’s home is required. The applicant with its interim care order and the parents in the exercise of their parental responsibility both agree to BA living in the identified children’s home. There is no dispute that the constant supervision and control and locked doors and windows and the fact BA is not free to leave means that the “acid test” for confinement is met, see Storck v Germany (2006) 43 EHRR 6. The confinement is imputable to the State – the local authority applicant. Further I have concluded that BA’s best interests dictate that her confinement in the hospital cannot continue beyond 14 days from 16 March 2026 and the authorisation of the deprivation of liberty will only be in her best interests in the children’s home at the end of the transition. I am satisfied that the DOLs order is necessary and proportionate to the harm BA is at risk of.
Comment
The industrial scale of deprivation of liberty of children arises out of a complicated complex of factors – as to which this research paper published by Research in Practice and the National Children’s Bureau (commissioned by DfE) entitled (snappily) Improving the outcomes of looked-after children and young people in complex situations with multiple needs, at risk or subject to a Deprivation of Liberty[1] (see further the ‘in conversation’ I recorded with one of its authors, Dr Susannah Bowyer). This judgment both shows badly things can escalate and with what impact on the child, and also reminds how important it is that we know – through judgments,[2] if nothing else – what is going on.
[1] The briefing by Camilla Parker on the legal frameworks for deprivation of liberty of children and young people which forms part of the report has now, very helpfully, also been published as a standalone document.
[2] As to which, a very real question must be asked as to whether how judges expected to hear the number of cases they do in the ‘National DoL list’ can be given the time to provide the kind of reasoned judgment that McKendrick J rightly identifies that they should be able to do.
