Lexis Nexis Chambers of the Year 2024

Introduction

The terms used when dealing with Deprivation of Liberty applications can be confusing. This article serves as a helpful cheat sheet for practitioners and lay parties, providing brief explanations of common terms used and heard in deprivation of liberty applications for children. It offers a starting point for further research.

At the outset, it is important to understand that the legal framework for the deprivation of liberty of adults is different and does not apply to people under 18 years old. This article does not deal with Deprivation of Liberty Safeguards, which brings us to our first commonly used term…

Deprivation of liberty safeguards

When dealing with people under 18 years old, many professionals refer to ‘DoLS’ which stands for ‘Deprivation of Liberty Safeguards.’ This is an incorrect term for deprivation of liberty authorisations for under 18s as the safeguards do not apply to children/young people.  

Article 5 Human Rights Act 1989:

Article 5 protects the right to liberty and security. This is, as is the case with most human rights, a qualified right. 

Secure accommodation

Section 25 Children Act 1989 governs the use of secure accommodation for children who are being looked after by the local authority. The criteria at Section 25(1) lays out the following: 

25(1) Subject to the following provisions of this section, a child who is being looked after by a local authority [in England or Wales] may not be placed, and, if placed, may not be kept, in accommodation [in England] [or Scotland] provided for the purpose of restricting liberty (“secure accommodation”) unless it appears—

(a)that—

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds, he is likely to suffer significant harm; or

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

In order to place a child under 13 in secure accommodation, the local authority will require the permission of the Secretary of State. 

There is a distinct and alarming lack of secure beds across the country, which is why local authorities have invited the High Court to use its inherent jurisdiction to sanction deprivation of liberty so that local authority’s may place children in non-secure placements with restrictions in place. 

The use of secure accommodation is also governed by the Children (Secure Accommodation) Regulations 1991.

Inherent Jurisdiction

The inherent jurisdiction of the High Court has been referred to as the ‘greatest safety net’ as it can act to plug gaps left in legislation. For example, where there are no available secure beds for children who require them, the High Court may use its inherent jurisdiction to deprive a child of their liberty in alternative accommodation. The inherent jurisdiction is not without its limits however.  

S.100 Children Act 1989

Section 100(2) Children Act 1989 places the following restrictions on the inherent jurisdiction: 

(2)No court shall exercise the High Court’s inherent jurisdiction with respect to children—

(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b) so as to require a child to be accommodated by or on behalf of a local authority;

(c) so as to make a child who is the subject of a care order a ward of court; or

(d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

For example, if a local authority sought a deprivation of liberty order for a 17 year old (too old for a Care Order to be made), who was not in the care of or accommodated by the local authority and there was no agreement to accommodating the child under Section 20 of the Children Act 1989, the High Court would be unable to use its inherent jurisdiction to authorise a deprivation of liberty where this would mean the child would be accommodated by the local authority. This would contravene Section 100(2)(b). A case which demonstrates this precise situation is: A City Council v LS and others [2019] EWHC 1384 (Fam), [2019] All ER (D) 12 (Jun). 

Section 100(3) also states that ‘no application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.’ Therefore, local authorities must apply for leave when making applications to deprive children of their liberty using the inherent jurisdiction.

The National DoL List (NDL)

Previously titled the National DoL Court, the National DoL List (NDL) operates from the Royal Court of Justice in London. 

Applications that are listed in the NDL will be dealt with by a full time High Court Judge of the Family Division or a Section 9 Deputy Judge of the High Court. All Judges are therefore addressed with the correct title: ‘My Lord/Lady’ and ‘His Lordship/Her Ladyship.’

Following the pilot of this scheme, which concluded in July 2023, the expectation will be that following the initial hearing, which will ordinarily be dealt with by the NDL, the proceedings will be transferred to the child’s local Court when there are or will be parallel public law proceedings or where there has been previous involvement of the family Courts, to allow for judicial continuity. This is provided there is a Section 9 Judge who is able to deal with the matter locally. It will be for the local authority to inform the NDL of local Court suitability. 

Ofsted

Ofsted is the Office for Standards in Education, Children’s Services and Skills. You may be familiar with Ofsted inspections of schools but in fact, Ofsted inspect services that provide education and skills and inspect and regulate services that care for children and young people, for example, children’s homes. If you hear of an ‘unregistered’ placement, this means the placement is not registered with Ofsted. 

Registered/Unregistered placement

A placement is unregistered if it is providing ‘care’ to a child/young person and is not registered with Ofsted. It is illegal to provide an element of care as well as accommodation and not register with Ofsted. Any under 16 year old in the care of the local authority would need to be placed in a registered placement. The situation is slightly different for 16/17 year olds, with them being able to be placed in unregulated placements such as supported accommodation, but only if they do not require ongoing ‘care.’ If they were to require ongoing ‘care,’ their placement would need to be registered with Ofsted. 

Regulated/Unregulated placement

An example of an unregulated placement would be semi-independent living such as supported accommodation, where the accommodation is provided but ‘care’ is not and only for 16/17 year olds. These placements have not, until recently, been illegal (apart from for under 16 year olds, who cannot be placed in unregulated placements). Historically, Ofsted have not been responsible for inspecting these placements, however inspections are due to start from September 2024, with it now being an offence to not register supported accommodation and unregulated placements with Ofsted. There has been a delay in starting the inspections due to Ofsted receiving an exceptionally high number of registration requests. 

Historically professionals refer to 16 and 17 year olds as ‘young people’ however, Ofsted’s current guidance is to refer to 16 and 17 year olds as ‘children.’  

For the avoidance of doubt, you would not see a child subject to a deprivation of liberty authorisation in a placement of this type. 

The terms ‘unregistered’ and ‘unregulated’ placements are often confused and sometimes used interchangeably by professionals. 

Court of Protection

For 16 and 17 year olds who lack capacity, their parents are unable to consent to deprivations of their liberty and an application should be made to the Court of Protection. The Mental Capacity Act applies to 16/17 year olds, but not under 16s. 

If an application is made for a 16/17 year old who lacks capacity to the NDL and there is reason to believe that the child would be transferred to the Court of Protection at age 18, the Court should transfer the case to the Court of Protection for consideration. 

Conclusion

A Deprivation of Liberty order is permissive, meaning that the deprivations should only be implemented when required. For example, if an order says that a child may be restrained by up to 4 professionals at a time. If that child does need restraining, but only in fact requires 2 members of staff to restrain him/her, this should be what occurs. The approach should always be the least restrictive and most proportionate response to the risk of harm which arises. As always, at the heart of these applications and the implementation of deprivations of children’s liberty should be the principles of respect for that child’s dignity, their rights/freedoms and protection of their welfare and safety. 

Written by Isabel HawkinsConsultant Barrister at Unit Chambers

Law is correct as of 26th June 2024. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein. 

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