It is exceptionally unusual for a judge, let alone a very senior judge, actively to invite a claim to be brought against the State for systemic human rights breaches, but that could be said to be the effect of the judgment of the President of the Family Division, Sir Andrew McFarlane, in the latest of the grim series of cases arising out of the lack of suitable secure provision for children. In Re X (Secure Accommodation: Lack of Provision)  EWHC 129 (Fam), Sir Andrew gave a judgment designed to “shout as loud as [the court] can” about the shortfall in provision “in the hope that those in Parliament, Government and the wider media will take the issue up” (paragraph 1).
The facts of the individual case make grim reading, Sir Andrew deliberately giving the history in some detail in order to personalise (in appropriately anonymised form) the plight of the 15 year old girl in question. What is almost worse is that, as he then continued:
21. 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.
Sir Andrew then went on to make clear that:
22. 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  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. (emphasis added)
To give a sense of the scale of the issue, Sir Andrew also highlighted the work of the “national DoL court”:
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.
He also highlighted the findings of the previous Children’s Commissioner, Anne Longfield, in her reports in 2019 and 2020 “‘Who are they? Where are they?,” in which she drew attention to ‘invisible’ placements outside the statutory scheme. Sir Andrew made clear that:
25. 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.
At a number of points in the judgment, Sir Andrew sought to spell out things which might be familiar with the system but to outsiders (and, indeed, frankly to everyone) are or should seem very odd indeed. A particularly odd point is that the making of an order under the inherent jurisdiction authorising placement in secure accommodation is not immediately followed by such placement. After all, he noted, if a criminal court passes a criminal sentence or makes a hospital order, the person in question goes straight to prison or hospital:
27. […] 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.
Sir Andrew then read into the judgment the rollcall of previous judgments emphasising the problem dating as far back as 2017, concluding at paragraph 42 that:
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.
The one small ray of light that might be seen within an otherwise almost entirely bleak situation came from the written submissions of the Secretary of State which, as Sir Andrew MacFarlane observed at paragraph 64, 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 [“to the effect that it was not its problem and was the responsibility of individual local authorities, [which] displayed a level of complacency bordering on cynicism”] 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.
The fact that the courts are consistently having to “operate outside the law as it has been made by Parliament” (judgment, paragraph 63) is hugely problematic – especially in circumstances where “Parliament has seemingly not even discussed this parlous and most worrying situation.” In part, and as the Nuffield Family Justice Observatory identified in its February 2022 report “What do we know about children and young people deprived of their liberty in England and Wales? An evidence review,” this reflects the fact that the size of the secure estate has declined over the past two decades, with the closure of 16 secure children’s homes since 2002. However, the NFJO continues:
There is some evidence that there is a cohort of children with particularly complex needs who are seen as too ‘challenging’ to be suitable for a secure children’s home. This includes children with very complex mental health needs but who do not meet criteria for detention under the Mental Health Act.
The consequence is that there has been a significant increase in the use of the inherent jurisdiction of the High Court to deprive children of their liberty in alternative placements. In 2020/21, 579 applications were made under the inherent jurisdiction in England – a 462% increase from 2017/18. In 2020/21, for the first time, applications made under the inherent jurisdiction outnumbered applications under s.25 Children Act 1989.
It is very important to emphasise that the situation being addressed by the President is not merely the equivalent of the post-Cheshire West situation in relation to adults with impaired decision-making capacity. In that 2014 case, the Supreme Court clarified that circumstances which had previously appeared to be entirely routine were in fact legally problematic, leading to a dramatic escalation in applications to seek authority. There may be some cases in which the 2019 decision of the Supreme Court in Re D (confirming that 16-17 year olds are deprived of their liberty if they cannot or do not consent to confinement) has led to a recognition that authority is required in previously unanticipated circumstances. However, situations such as that of X are ones which would always have required authorisation – and, indeed, are ones which reflect the end point of an escalating chain of events which will often reflect upon the availability of services prior to that point. As the NFJO identifies:
Although there is a lack of research about children’s experiences prior to entering secure care, a handful of studies have highlighted a lack of early intervention and support in the community for this group. We know that children in welfare placements tend to enter care late, and once in care, experience the repeated breakdown of arrangements made for their care in the community. There is a clear lack of suitable placements, including specialist foster care and residential provision, that can support children with complex needs both before and after a secure placement.
In the circumstances, it is even more troubling that, as Sir Andrew MacFarlane identifies, even the accommodation that can be patched together by local authorities and the courts (whether as a substitute for secure accommodation or for a child who is seen as requiring something other than secure accommodation) is so often not appropriate to meet the needs of the children in question. This, in turns, raises very starkly the question of whether the State is discharging its obligations to those children under the ECHR, not just under Articles 2 and 3, but also 5 and 8.
 Who initially declined to attend on the basis that this would not be an effective use of public funds, an observation which did not go down well with the President.
 Judgment, paragraph 55.
 In relation to Article 5, a consistent feature of the judgments is that – to my mind problematically – they do not identify what limb of Article 5 is being relied upon. Whether it be under Article 5(1)(d) or Article 5(1)(e), however, the lawfulness of detention is contingent upon the person in question actually receiving some form of appropriate care.