Re J (Deprivation of Liberty – Hospital) [2022] EWHC 2687 (Fam) Case Summary

Introduction
The case of Re J is one of the latest in a long string of alarming cases involving vulnerable children being cared for in unsuitable settings due to the lack of availability of placements on a national scale.

Case summary
J is a 13-year-old girl who was made subject to an Interim Care Order on 20th July 2022 in favour of Manchester City Council and had been living in a hospital for 3 months at the time of the judgment.

J is diagnosed with Autism Spectrum Disorder and ADHD. She also has additional needs involving issues with attachment, hyperactivity, impulsivity and, inattention. J has assaulted others in the past and has absconded and self-harmed on several occasions. She has received support from CAMHS, the local authority and, from psychiatric services. Her mother was unable to care for her due to the risk she posed, particularly to the mother’s other children.

J has been assessed as not being Gillick competent to make decisions about her care and treatment.

J had previously been admitted to hospital following an overdose and self-harming episode. She then absconded from hospital and threatened to jump off a bridge. She was then detained under Section 136 of the Mental Health Act 1983 and the police invoked their powers of protection. She was then placed in foster care. She overdosed again and was re-admitted to hospital. J then went through a period of being discharged from hospital and then being re-admitted shortly afterwards, eventually being detained under Section 2 of the Mental Health Act 1983 (which was rescinded 6 days later).

J does not have a physical or mental health condition that requires in-patient treatment and the Court commented that a hospital is not a suitable environment for her to be placed, however, the local authority has been unable to find any alternative placement for her. The Court has continued to authorise the deprivation of her liberty within the hospital setting but has brought the matter back for review on several occasions.

The local authority is funding a team of agency care staff to look after J within the hospital.

All parties agreed that the hospital setting was unsuitable for J but there was nowhere else for her to go.

Poole J comments in his judgment that ‘remarkably’ J attends school every day and there have been no issues in that area. However there have been numerous problems whilst she has been residing at hospital, including damage to property, threats, assaults on staff, and self-harm including cutting. The Court notes that there was a particularly concerning assault on staff in late August 2022 and she was moved to another hospital.

This scenario is becoming all too common and Poole J comments [7]:

Very sadly this case is not unique. J’s plight highlights an ongoing problem that is blighting the lives of many children with complex needs whose behaviour presents very significant challenges to those who are caring for them:

i) The number of available suitable placements for these children is far below the number needed; therefore

ii) Local Authorities with responsibility to accommodate and care for these children cannot find suitable places for them. To be clear, as this Applicant has done, Local Authorities search around the country for suitable accommodation, not just in their own areas. This is a national problem seemingly affecting all Local Authorities; therefore

iii) These children – children who are the most in need of support from skilled and experienced carers in safe and suitable placements – are accommodated in unsuitable places, such as holiday accommodation, homes that are not subject to any regulation, and sometimes, as in this case, even in hospitals where they do not belong.

iv) The care regimes designed to keep these children safe often involve depriving them of their liberty; therefore

v) The High Court is asked to authorise the deprivation of these children’s liberty in unsuitable placements.

Point v) of this list is that the High Court is having to use its inherent jurisdiction to authorise local authorities to deprive children of their liberty and place them in unregistered placements – Ofsted being the relevant regulating body. It is a criminal offence to run an unregistered children’s home. A hospital is not a children’s home and therefore does not fall within that regulatory regime. It is therefore not illegal for J to be placed there. The Court does, however, need to be satisfied that it is necessary, proportionate and in J’s interests to be placed there, with her liberty deprived.

The local authority had continued to search for alternative placements to no avail. The Court set out the alternative placement options for J in paragraph 13 of the judgment. The options were: for her to return home, foster placement, secure accommodation, placement in a children’s home or placement in a bespoke placement. The options were analysed as follows:

  1. J cannot return home due to the risk she poses to herself and to her siblings.
  2. A foster placement would not be suitable or safe for J.
  3. Although J would meet the threshold for secure accommodation under Section 25 Children Act 1989, the local authority do not consider that to be suitable for J. In any event, there is an alarming dearth of secure beds across the country. The judgment notes that on 10.10.22, there were 62 referrals for secure beds across the country and only one female vacancy.
  4. The local authority have been unable to find a children’s home that would accept J given her history.
  5. Bespoke placements are not regulated and are not registered children’s homes. The package usually entails a team of agency staff providing care within a property of some description. The Court was told in September 2022 that there was a shortage of available agency carers.

The local authority had identified a private landlord who could provide a property to be rented by the local authority for the purposes of providing care for J, however, there would need to be a delay in moving J to the placement as staff would need restraint training.

This would of course be an unregistered placement and the local authority had anticipated that Ofsted may serve ‘cease and desist’ notices on both the care provider and the landlord, which highlights a risk of prosecution. There is then the risk that the care provider and/or the landlord may withdraw, and J would once again have nowhere else to go.

The Court was satisfied that J’s liberty should continue to be deprived at the hospital until she is transferred to the placement and that it was necessary, proportionate and in her best interests to do so. The Court also authorised the deprivation of J’s liberty in her new placement, under different restrictions and despite this being an unregistered placement.

Poole J commented that if the bespoke placement had not been available within a reasonable timeframe, he would have been unlikely to authorise the continued deprivation of J’s liberty in hospital as it would not be in her interests. However, given the lack of resources on a national scale, this was the only option available currently.

The local authority was invited to continue their search for a registered placement for J and it was ordered that a copy of the judgment be sent to Ofsted, the Secretary of State for Education, and to the Children’s Commissioner for England.

Reporting Restriction Order
The Court made the decision that the hearing should be heard in public and made, of its own motion, a reporting restrictions order (RRO). The order did not include anonymisation of the local authority and submissions were heard from the parties on the issue. Ms. Tickle, a freelance journalist, was present at the hearing and also made submissions on the point. She averred that it was in the public interest for the local authority to be named as it was important for democratic accountability and voters needed to know how children being looked after by their local authority are being provided for.

The local authority sought anonymisation relying on the jigsaw argument (the argument that putting small pieces of information together, such as the name of the local authority and the age of the child etc might lead to the child being identifiable).

The Court held that the public interest in knowing the identity of the local authority outweighs the risk of identification of J by the local authority being named in the judgment.

Takeaway Points:

  • The inherent jurisdiction of the High Court is consistently having to be used as a safety net due to the gap in statute caused by a lack of available resources.
  • Hospital resources are being used to accommodate children who do not require hospital treatment, thereby using up valuable resources that should be available for those who need them.
  • This is a national issue faced by local authorities across the country.
  • This issue is attracting media attention and professionals can expect Reporting Restriction Orders to be made and more hearings to be held in public. 

Written by Isabel Hawkins, Consultant Barrister

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