Alex RK[In an extremely helpful, but depressing, report published on 22 June 2023, the Nuffield Family Justice Observatory analysed applications received during the first two months of the national deprivation of liberty court pilot (July and August 2022), focusing on the legal orders subsequently made, with cases tracked up to 31 December 2022.[1] For the avoidance of the doubt that we see manifest everywhere, the national DoL court has nothing to do with the Deprivation of Liberty Safeguards regime provided for in the Mental Capacity Act 2005. The ‘DoLS’ regime applies solely to adults over the age of 18 in care homes and hospitals. The National DoL court is nothing other than an (important) administrative mechanism for the listing of cases before the High Court exercising its inherent jurisdiction to authorise the deprivation of liberty of those under 18.
It is not sensibly possible to improve on the summary of the report prepared by the NFJO themselves, which I reproduce in material part below]
Nuffield FJO’s study is the first national overview of the outcome of DoL applications. It analysed whether orders applied for are granted and how long for, the nature of the restrictions authorised, where children are placed, and children’s and parent/carers’ participation in proceedings. The study focused on 113 children – a subsection of a larger sample of 208 children included in previous Nuffield FJO research on the needs of children subject to DoL applications.
In 104 of the 113 cases (92 per cent), applications for DoL orders were granted. [In the other cases, the full report notes that “the case was withdrawn at or before the first hearing. Mainly, this was because the deprivation of liberty was no longer thought necessary but in some cases the local authority was directed to apply to the court of protection due to the child’s age, or a secure accommodation order was made to place the child in a secure children’s home.”] While these orders are intended to be a temporary measure, most children (68.3 per cent) were still subject to an order on 31 December 2022.
The restrictions authorised by the court involved severe constraints that remained in place for significant periods of time. Each child was subject to an average of six different types of restriction on their liberty, including, in almost all cases (99 per cent), constant supervision, usually by multiple adults. The use of restraint was permitted in over two-thirds (69.4 per cent) of the 104 cases. Over a six-month period, only a minority of children (seven, 9.2 per cent) experienced a relaxation to deprivations of their liberty.
While it didn’t appear that the restrictions applied for were routinely questioned or scrutinised, in some cases, the court ordered the local authority to file an ‘exit plan’, with clear information about how and when the restrictions would be reduced, to share with the child. In a small number of cases, the court refused to authorise some of the restrictions – usually related to the use of restraint or limits placed on the child’s access to the community.
In over half of the cases (53.8 per cent), children were placed in at least one unregistered2setting, ranging from semi-independent accommodation, Care Quality Commission-registered accommodation, hospital wards, and temporary rented accommodation, including hotels or caravans. A significant majority of children (over 70 per cent) where the deprivation of liberty was sought primarily to manage risks related to criminal exploitation, emotional difficulties, behaviours that were a risk to others, and self-harm were placed in at least one unregistered setting, indicating a lack of suitable regulated provision for children experiencing such risks. Children subject to a DoL order primarily due to a learning and/or physical disability were the least likely to be placed in unregistered accommodation.
The placements were also far away from where children were living – on average 56.3 miles away from their home. Six children were placed in Scotland (at an average of 254.4 miles from the child’s home area).
Information about children’s access to education and therapeutic services was limited in the orders, and concerns about this were often raised by the court, children’s guardians and parents or carers. In several cases, the court directed the local authority to provide a more detailed care plan.
The research also highlights that children have limited opportunities to formally participate and have their voices heard in DoL proceedings. Article 12 of the UN Convention on the Rights of the Child (UNCRC) states that children have the right to express their views in all matters affecting them, and to have their views considered and taken seriously. Yet just 10 out of 104 children attended at least one hearing in their case. Five spoke to the judge directly before the hearing and six wrote to the judge to share their views. Furthermore, in 15 per cent of cases, a children’s Cafcass guardian had not been appointed for the child at the first hearing. This was usually due to applications being made at very short notice or delays in making children party to proceedings. Five children were separately represented (where the child separates from the guardian and instructs their own solicitor).
Furthermore, despite DoL orders having a severe impact on family life, most parents or carers did not have legal representation; parents and/or carers were legally represented (for at least one hearing) in just 12 cases (11.5 per cent). This is likely to be because parents are not automatically entitled to legal aid for legal representation in DoL cases, unlike in care proceedings.
[The lead author of the report, Alice Roe, spoke at the seminar that we held at 39 Essex Chambers in March 2023, at which a range of speakers addressed many of the issues relating to deprivation of liberty of children and young people. A recording of the seminar can be found here.]
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[1] The NFJO is also regularly collecting, analysing and publishing data from the court, and estimates that approximately 1,300 applications will have been made over a 12-month period.
