In a powerful and wide-ranging report published by the Children’s Commissioner on 16 May entitled “Who are they? Where are they?” the basis is examined upon which almost fifteen hundred children in England are ‘locked up’ in secure children’s homes, secure training centre, young offenders institutions, mental health wards and other residential placements, either for their own safety or the safety of others. Importantly, however, the report also contains a detailed analysis of the situation of ‘invisible’ children, where their deprivation of liberty has either been authorised under the inherent jurisdiction of the High Court, the Court of Protection or perhaps not authorised at all. As the Children’s Commissioner notes:
we […] have no publicly available information about where they are living or their wellbeing. In 2017/18 there were 211 children whose deprivation of liberty was approved by the courts, and the legal confusion about these court processes could mean there are more children in restrictive settings who have not had their detention approved by the courts. While many children in these settings are likely being well cared for, we are concerned that the lack of transparency about the high level of intervention needed to look after these children, the appropriateness of the settings, and the legal safeguards in place for them mean that these children are in some ways the most vulnerable.
The chapter on invisible children makes essential reading as we await the judgment of the Supreme Court in the Re D case on the extent to which reliance can be placed upon parental consent to take a child subject to confinement out of the scope of (and therefore the protections afforded by) Article 5 ECHR.