England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SITTING AT FAMILY COURT, LEEDS

		Coverdale House East Parade Leeds
		28/04/2020

Mr Justice Cobb:

Introduction

1. This judgment concerns Samantha^[1]. She is 15 years old, and an extremely vulnerable young person, with complex needs. She is the subject of an interim care order in favour of East Riding of Yorkshire Council ('ERYC'). Samantha is currently living as the only young person in a holiday cottage in rural North Yorkshire which has been rented by ERYC solely for the purposes of accommodating her. She is living with, and is supervised day-by-day by, up to three adult members of staff employed by an independent care agency. This placement is unregistered, and therefore unregulated by Ofsted^[2]. The current holiday short-term let is due to expire in mid-June; if the lease is not extended, Samantha and her adult carers will then have to move. This will be her 16^th move of 'home' (if it can be so called) in the last 12 months.
2. Samantha is one of a number of young people around the country who, as children in care, are accommodated in unregistered placements. Samantha, again like many similar young people, is the subject of an order authorising ERYC to deprive her of her liberty in material respects while in her placement. This order has been made in her own interests. The local authority applies today to renew that order.
3. Samantha's case is depressingly all too familiar to those working in the Family Court, and is I believe indicative of a nationwide problem. There is currently very limited capacity in the children's social care system for young people with complex needs who need secure care; it appears that demand for registered places is currently outstripping supply. This is the frustrating experience of the many family judges before whom such difficult cases are routinely presented. It is also the experience of the Children's Commissioner to whom I forwarded a number of redacted documents in this case, with the agreement of the parties. I have set out her response, having seen those documents, in full at [28] below. She has indicated that she would like the issues raised by this case, which she accepts are illustrative of similar cases up and down the country, to be raised directly with the Secretary of State for Education, the Rt Hon Gavin Williamson CBE MP. With my explicit permission, it shall be.
4. The proceedings concerning Samantha were before me for directions, and for me to consider the authorisation of her deprivation of liberty, on 27 February 2020. The application was before me again today, 28 April 2020, for the same reasons. Samantha attended the hearing on 27 February, and I was able to speak with her; she politely and respectfully observed the formalities of the court hearing. She listened attentively to the proceedings. She told me that she simply wants an "ordinary life".

Samantha's background

5. I propose to provide only outline information concerning Samantha, simply to give an insight into her background history.
6. Samantha has three older siblings and a younger brother, T; T (by his court appointed Children's Guardian) is also a subject of these proceedings, but this judgment does not concern him. Samantha and her siblings experienced a chaotic childhood, with little security or stability. Their mother suffered from mental illness; there is evidence that both of her parents misused drugs and/or alcohol.
7. Samantha's parents separated about three years ago. Shortly afterwards, (late 2017), Samantha began to abscond from her mother's home, where she lived with T; support to manage Samantha's behaviour was offered to the family by ERYC's Youth and Family Support Services but with limited success. In May 2018, Samantha took an overdose of prescribed drugs; this was the first of at least four such incidents. In the following month, ERYC placed Samantha and her brother on Child Protection Plans. The parents felt increasingly unable to allow Samantha back into their respective homes when she absconded, conceding that they could not cope with her behaviour. Samantha spent a number of months moving between her parents' homes, foster homes, and the homes of her friends' families. She threatened to burn down a foster home, and was arrested and interviewed by the police; although she was already known to the Youth Offending team, no action was taken. She was first formally accommodated by ERYC under section 20 Children Act 1989 ('CA 1989') on 6 March 2019 and placed in a residential children's home on 13 March 2019. She continued to abscond from this home on a daily basis.
8. During her first month in the children's home, Samantha swallowed pieces of razor blades when staff told her that she could not leave the home during the evening; she was admitted to hospital for investigation. She absconded from the hospital, but was apprehended and returned by the police. She underwent surgery in an attempt (which failed) to remove the several shards of razor blade and other metal objects identified on X-Ray. She is believed on other occasions to have swallowed glass. She has seriously self-harmed in many other ways.
9. In April 2019, Samantha was assessed by the Child and Adolescent Mental Health Services (CAMHS) crisis team who unsurprisingly reported her to be at high risk of death "by misadventure and her ambivalence to risk".
10. In May 2019, ERYC sought a care order in respect of Samantha under section 31 CA 1989, and a secure accommodation order under section 25 CA 1989. ERYC took the view that that if Samantha remained in her then current placement she would continue to abscond, and was likely to suffer significant harm should she do so. ERYC's position was that if Samantha were to be placed in any type of accommodation other than secure accommodation, she would be likely to injure herself. For a period, Samantha was placed in St Catherine's Secure Accommodation Unit near St Helens, Merseyside. Although Samantha received therapy and education in this placement, it was not without its difficulties; despite a period of relative stability at St Catherine's, Samantha's behaviour deteriorated. She continued to self-harm, and assaulted staff members. In October 2019, St Catherine's gave notice that they could no longer manage to provide care for Samantha.
11. Samantha returned to the East Riding of Yorkshire. With no immediate substitute placement in sight, in November 2019, HHJ Heaton QC, sitting as a Deputy High Court Judge, made the first of a number of orders authorising ERYC to deprive Samantha of her liberty in accommodation other than secure accommodation. Samantha initially spent time at a training flat (supervised by trained staff) owned by ERYC (unregistered care and accommodation provision) before being moved to a holiday cottage in Lincolnshire (unregistered provision); she was the only child in the placement, supervised by three members of staff. Her disruptive behaviour continued.
12. Pausing here, it is to be noted that in the two years to late 2019, Samantha had been reported missing from home, or other placements, no fewer than 123 times; that figure is now 131. When located and returned to placement, Samantha has often been assessed to be under the influence of drugs. Samantha was, and is, also assessed as being at serious risk of child sexual exploitation by reason of her repeated abscondences and her vulnerability, particularly given that she did not, and does not, fully acknowledge the risks to herself. She was known to associate with older males who have the potential of harming her or coercing her into actions that are a risk to herself or others.
13. The placement at the Lincolnshire holiday cottage was only ever intended as a stopgap measure while awaiting a more suitable placement. In the period from November 2019 to January 2020, ERYC attempted to support Samantha's placement back with family members – variously with parents and relatives. Each family placement broke down. I should emphasise here that Samantha's parents love her, and, despite their personal difficulties, would dearly like to care for her, but accept that she is currently beyond parental control. All this while, ERYC continued to look (see below [25-26]) for therapeutic secure placements.
14. In early 2020, Samantha was placed with foster carers; she absconded from their home. She was placed in another holiday cottage (again under close supervision from staff and subject to deprivations of her liberty, and again an unregistered provision), but managed to abscond; on one occasion of absence she reported that she had taken 12 ibuprofen tablets but refused hospital treatment. On a further occasion, having absconded, Samantha was followed by staff for 6 miles during which time she threatened to throw herself under moving vehicles and threatened to harm staff. When Samantha was apprehended on this occasion by the police, she was removed to a hospital pursuant to s.136 of the Mental Health Act 1983^[3]. Samantha remained in the hospital overnight. On the day following her discharge from hospital, she absconded again and was located on the roof of a premises in Bridlington.
15. By the time the case was before me at the end of February, Samantha was residing temporarily in a holiday cottage in North Yorkshire (unregistered provision), as the sole child in placement, supervised by three members of staff. This placement was necessarily short-term. For one weekend in early March, Samantha and the staff were required to vacate, as the cottage had been let to holidaymakers. Other emergency short-term holiday-let accommodation (unregistered provision) had to be found for them. They then all moved back to the holiday cottage in North Yorkshire (unregistered provision) where, by the time of the hearing today Samantha is still resident. This home is over 30 miles from where her parents live. By the standards of some cases, Samantha is at least reasonably close to her family; many children in unregistered placements are many miles from home. Samantha has been settled in her current placement since the second week of March 2020 without any notable incident of concern; this is the longest period of stability she has had since her stay at St Catherine's. The current placement is available until mid-June 2020. Provisional plans are being laid for what happens thereafter.

Wider context

16. There are currently more than 78,000 children in care; the majority of those children are in foster care. A significant number (c.6,500^[4]) are in children's homes; the Care Standards Act 2000 ('CSA 2000') defines a 'children's home' as an establishment which provides 'care and accommodation' 'wholly or mainly' for children (see section 1(2) CSA 2000). It is accepted in this case that the current accommodation provided for Samantha is captured by the statutory definition of 'children's home'^[5]. However, many young people, like Samantha, are in placements ('children's homes') which are not registered; 'care and accommodation' is provided for these young people in a range of places, including short-term holiday lets (i.e. flats and cottages), as in Samantha's case, and in mobile homes, and static caravans. Where those units are not being used simply for leisure, cultural or educational activities for children, they are deemed to be unregistered children's homes. Given the shortage of suitable accommodation in England and Wales, particularly for the most challenging children, some have been known to be placed in children's homes in Scotland (see, for example, the judgment of MacDonald J in Salford CC v M [2019] EWHC 1510 (Fam)).
17. I recognise that many local authorities, including ERYC, simply do not have sufficient provision locally to meet the needs of all of the children who require accommodation. All those working in the Family Court are familiar with the situation of a child who at a point of crisis is placed, or is to be placed, in an unregistered children's home, as an often unavoidable, urgent and temporary measure. The urgency of a situation, however, does not truly make it any more acceptable. It is important to emphasise that it is a criminal offence to run a children's home without the appropriate registration (section 11 CSA 2000); concerns have been widely raised across the professional spectrum about the quality of the care, support and safeguarding offered by some of the providers. Research commissioned by the Department for Education ('DfE') earlier this year^[6] provided evidence that:

"Several local authorities (LAs) use existing unregulated providers with bespoke packages designed to cater for young people with multiple issues (such as mental health issues, a history of assaulting staff, fire setting, and self-harming), often in the context of placement breakdowns. According to the LAs concerned, these children are very difficult to place in registered provision and they place them in unregulated settings as a short-term measure, while suitable registered provision is located and/or an assessment is undertaken to determine a young person's needs. The children involved range from 11 to 17 years old and include some for whom LAs are looking to obtain a secure placement."

Interestingly, the research also showed that the young people placed in unregistered provision were said to typically have complex needs with often a history of multiple placement breakdowns. Where this is the case, registered providers may be reluctant to accommodate young people. All of this research evidence entirely correlates to Samantha's experience.

18. It is of course a particular concern that placements of young people in unregistered provision are not uncommonly accompanied by applications in the High Court (as here) for authorisation to deprive the young person of their liberty. This was highlighted by the Court of Appeal in Re T [2018] EWCA Civ 2136, in which the President of the Family Division, giving the lead judgment, said this:

"[5] It is plainly a matter for concern that so many applications are being made to place children in secure accommodation outside the statutory scheme laid down by Parliament. The concern is not so much because of the pressure that this places on the court system, or the fact that local authorities have to engage in a more costly court process; the concern is that young people are being placed in units which, by definition, have not been approved as secure placements by the Secretary of State when that approval has been stipulated as a pre-condition by Parliament".

19. The growing alarm about this wholly unsatisfactory situation prompted the issuing of the Practice Guidance: Placements in unregistered children's homes in England or unregistered care home services in Wales jointly by the President of the Family Division and Ofsted on 12^th November 2019; this makes clear that judges must ensure when authorising a placement in an unregistered unit that:

"… steps are immediately taken by those operating the unit to apply for registration (if the unit requires registration) so that the placement will become regulated within the statutory scheme as soon as possible".

20. Shortly before the last hearing in this case, the DfE published a consultation paper on reforms to unregulated provision. In its introductory section, the paper reads:

"We are particularly concerned that increasing numbers of children under the age of 16 are being placed in situations where either the provider is only offering support and not care, or care is being provided but the provider is operating illegally (an unregistered setting). It is unacceptable for any child or young person to be placed in a setting that does not meet their needs and keep them safe, for any amount of time".

I respectfully share these concerns. Regulation of our children's homes offers an essential safeguard to the delivery of appropriate care for our young people, many of whom, like Samantha, are damaged through their own life experiences.

Current placement: deprivation of liberty

21. The current limitations on Samantha's liberty while she remains at the holiday cottage are as follows:

i) She is not permitted to leave her placement without supervision and agreement by placement staff.

ii) She was formerly under constant supervision and control within the cottage by at least one member and up to two members of staff when required; this restriction has been relaxed at this hearing.

iii) She is supervised at night by a waking-night staff member.

iv) She is not to be in a room which is lockable from the inside, without a staff member present or with their prior agreement with a staff member.

v) She is not permitted access to the kitchen or food preparation area without supervision save where agreed by placement staff.

vi) She is not permitted to access metal cutlery, glass, kitchenware or pottery without supervision save where agreed by placement staff.

vii) The staff at the placement are permitted to use reasonable force to ensure that the care plan containing these restrictions is adhered to and in order to prevent Samantha from causing harm to herself and others.

viii) The staff at the placement are permitted, should it be necessary, to remove from Samantha any items which may cause her harm, or which may be used to harm others.

ERYC have assured me, and I accept, that these restrictions have been and are regularly reviewed; it has confirmed that a timetable for proposed further relaxations of these limitations (subject to Samantha complying with the regime) will be set out in a further care plan which will be filed in 7 days.

22. It is agreed by the advocates, and I confirm that I also agree, that these conditions on Samantha's placement amount to a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights (ECHR). Samantha's circumstances fall within the definition of interference with liberty set out in Storck v Germany (2006) 43 EHRR 6; there the European Court of Human Rights established three broad elements comprising a deprivation of liberty for the purposes of Article 5(1) of the ECHR, namely (a) an objective element of confinement to a certain limited place for a not negligible period of time, (b) a subjective element of absence of consent to that confinement and (c) the confinement imputable to the State. Only where all three components are present is there a deprivation of liberty which engages Article 5 of the ECHR (see also my judgment in Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47, and Sir James Munby P in Re A-F (Children) [2018] EWHC 138 (Fam), esp. paragraphs 47-55).
23. I have satisfied myself that these conditions, or limitations, are necessary and proportionate, and, bearing in mind Samantha's history of challenging and risky behaviours, they are the least restrictive which I could contemplate for her at this time. I was, and am, satisfied that there is reasonable cause to believe that, if I do not exercise my powers to deprive Samantha of her liberty, she is likely to suffer significant harm and there is no other way available to ERYC for her to be protected. Samantha herself accepts these conditions. Overall, therefore, I am satisfied that these conditions remain in her best interests and I will make the declaration sought by the local authority.
24. I further find and declare that it is lawful and in Samantha's best interests to be deprived of her liberty for the purposes of transporting her to and from her placement, to court, to contact and other necessary journeys. I have directed that the local authority, its officers and agents, are authorised to use reasonable force to detain Samantha in the transport, or to return her to that transport in the event that she attempts to leave, other than with the agreement and supervision of the officers in attendance.

Efforts to find a placement

25. ERYC has, unsurprisingly, become profoundly pessimistic in its search for secure accommodation placement for Samantha; I am advised that, today, there are still no such placements available. If a suitable secure bed becomes available in the next few days or weeks, the local authority would give some thought to exercising its powers under Regulation 10 of the Children (Secure Accommodation) Regulations 1991 (72-hour maximum placement without court authority) to place her, and then restore the matter urgently to court. At the hearing today, and given the cautiously positive way in which Samantha appears to be responding to the provision of care at present, the authority is starting actively to consider other options for her too.
26. I have been provided with detailed accounts of the efforts made by ERYC in undertaking its extensive nationwide searches for a placement for Samantha since mid-October 2019 when the placement at St Catherine's was imminently to end. I feel that it is appropriate that I should set this out, at least in summary. The witness statement filed by a fostering social worker confirms the following unchallenged facts:

i) Every working day (apart from the short periods when she has been back at home), the Children's Commissioning Team has been actively searching for a placement for Samantha, without success;

ii) Every working day, the Children's Commissioning Team has placed an enquiry with the national Secure Welfare Coordination Unit (SWCU)^[7] for a placement for Samantha; this has produced no offer of a placement; it is apparent that at times, the number of open referrals with SCWU has exceeded 40 (see [28] below);

iii) On various days within the relevant period (i.e. this has happened more than once), the referral for a placement has been sent to over 200 independent agencies offering residential care (and residential care with education) nationwide; this has produced not one single offer of a placement which would match Samantha's needs;

iv) On some days, up to six members of staff from the fostering team at ERYC have been engaged in carrying out searches, by extensive telephone calls and e-mail enquiries to residential agencies for a placement for Samantha; to no avail;

v) When vacancies have from time to time been identified, ERYC have been advised that there were often in the region of 35-40 live referrals for a single place; Samantha has not been the successful applicant;

vi) Bearing in mind the importance of trying to place Samantha close to home, ERYC have made repeated specific enquiries of North Yorkshire Council, York Council, Lincolnshire County Council, Bradford Council, Kirklees Council, North Lincolnshire Council, Wakefield Council and Calderdale Council. No placement has been identified from these telephone calls, due to limited vacancies.

At the time of this hearing, 188 days have passed without a suitable registered placement having been found for Samantha. In that time, she has had many moves and been accommodated in a range of placements, including, altogether 7 different unregistered children's homes. ERYC has confirmed that it will be taking immediate steps to seek registration of this current placement if it has not done already. I strongly suspect that by the time the application is processed, Samantha will have had to move on.

27. The crisis caused by the coronavirus COVID-19 pandemic will plainly have impacted on the provision of secure accommodation at present, and made the task of finding a bed in a secure unit for Samantha yet more difficult. But I wish to stress that the problems raised in this case are not related to the pandemic. The absence of satisfactory secure provision is a chronic problem, which in recent years has become ever more acute to the significant detriment of a large number of very damaged young people in our society. It should not be forgotten that in this case, as I point out above, ERYC, has been looking for a place for Samantha since well before the pandemic arose.

Office of the Children's Commissioner

28. As mentioned above ([3]) I authorised disclosure of limited redacted documents to a number of Government departments and national agencies with an invitation to them to advise whether they could assist specifically in this case to find a placement for Samantha, or cast any new perspective on the challenges faced by this local authority in doing so. In response to this invitation, on 16 March 2020, the Office of the Children's Commissioner wrote in these terms:

"This case is indicative of a nationwide problem with capacity in the children's social care system, particularly for children who need secure care. The Commissioner has been highlighting her concerns on this issue to the appropriate authorities for over a year. The Secure Welfare Coordination Unit (SWCU) received 492 referrals last year.

The Unit's report says:

"The volume of daily open referrals remained consistently high for the latter end of the year. During October, the unit peaked at 41 open referrals, which is the highest since data has been collected by the unit from May 2016 and four higher than the peak in 2018."

The report also highlights that many children are living in temporary or unregulated settings when they are referred to secure care. The report notes that 16 per cent of children were living in 'CLA – Other' accommodation at the point they were referred to SWCU. Examples of this kind of accommodation include being held by police, unregulated placements, holiday lets and rented houses with staff.

Some children (perhaps the most complex) are often refused multiple times – data provided to us by the Secure Welfare Co-ordination Unit shows that, between July 2018 and June 2019, 83 children were referred to six or more secure homes and not offered a place in any.

CAFCASS have provided data on how many applications for Deprivation of Liberty authorisations were made to the high court. There were 122 applications between 1st April 2017 and 31st March 2018, and 185 between 1st April 2018 and 31st January 2019. These numbers give an indication of the number of children who are in a similar situation to [Samantha] the subject of these proceedings.

The Children's Commissioner requested data from Local Authorities regarding the number of children who are being deprived of their liberty with legal authorisation and without legal authorisation in order to identify children who do not appear in the data provided by CAFCASS.

The Office has also visited a series of places where children are deprived of their liberty, this included children's homes where staff had not received any training on deprivation of liberty. The children have been interviewed to better understand their experience and the impact this has had on them. The report will be published later this year. If the subject of these proceedings would be willing to share her experience with us, we would be very pleased to have the opportunity to visit her to inform our work.

The Children's Commissioner's Advice and Representation service, Help at Hand, is also regularly called by young people and professionals concerned that there is no appropriate home for children in care to live in. In many cases, these are children who are ready to come out of a more restrictive setting, like a secure children's home or a mental health ward and cannot because the Local Authority cannot find a place that will take them. On other occasions, these are children who are living in a less supportive setting and who need more care.

The subject of these proceedings appears to be in an unregistered placement (a placement providing care to a child, rather than just support, should always be registered with Ofsted). It is not clear whether the court or Local Authority considered the necessity of registering her current placement? Our work on unregistered and unregulated settings has revealed that in some cases the children in these settings have a very high level of need, and receive high levels of care outside of the requisite regulatory framework.

The Children's Commissioner has been working with representatives from the Department for Education, the NHS and the Youth Custody Service to encourage them to work together to ensure sufficiency of appropriate services for these children with very high needs.

With your permission, the Children's Commissioner would like to send the papers sent to her in this case to the Minister for Education the Rt Hon Gavin Williamson CBE MP to further highlight this issue."

Samantha has indicated, through her solicitor at this hearing, that she would indeed be willing to accept the invitation, contained in the response above, to share her experience with the Office of the Children's Commissioner; I will, if required^[8], consider requests for her to communicate further information relating to the proceedings to the Office of the Children's Commissioner, in this regard.

Conclusions

29. Samantha is reported still to be an anxious, scared teenage girl who, as my summary of her history above will have revealed, has suffered significant instability in her life both before she came into care, and since. She is, as the Children's Commissioner observes, one of those young people who has a "very high level of need". She appears at times to struggle to regulate her emotions; when she feels scared, out of control or restrained, she has resorted to "fight or flight", and has harmed herself or others, and/or has absconded. She desperately needs a secure, boundaried, setting with therapy and education. I am sure she means it when she tells me that she craves an ordinary life.
30. I am satisfied that ERYC is doing its best for Samantha, and it should continue to have the facility of the deprivation of liberty declarations in the form set out in [21] above, while she resides in the current holiday cottage. But currently, as ERYC itself acknowledges, this is not a situation which truly meets her multiple needs – for therapy, education, stability and security. The authority feels powerless to secure an appropriate alternative placement for her, and accepts that the care system overall has in many ways failed her.
31. The President of the Family Division has had sight of this judgment in its final draft. He entirely shares the concerns which I have expressed above about Samantha's situation, and about the significant number of similar cases which are regularly brought before the Family Courts; the essential message of this judgment of course echoes what he himself had said eighteen months ago in Re T (see [18] above).
32. In order to raise awareness of the plight of Samantha and young people like her, I direct that this judgment, and the collection of agreed redacted case documents, shall be sent forthwith to the Rt Hon Gavin Williamson CBE MP, Secretary of State for Education, to Sir Alan Wood, Chair of the Residential Care Leadership Board, to Vicky Ford MP, Minister for Children, and to Isabelle Trowler, Chief Social Worker.
33. That is my judgment.

Note 1   This is not her real name, but is the name she has chosen to be known by in this judgment.    [Back]

Note 2   Office for Standards in Education, Children's Services and Skills (Ofsted).    [Back]

Note 3   “If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons— (a) remove the person to a place of safety…”     [Back]

Note 4   Data provided by Oftsed.    [Back]

Note 5   It is accepted that not all settings in which children live are subject to regulation, including, for instance supported living for the older child, or a service runs for less than 28 days and is for recreation.    [Back]

Note 6   Professor David Greatbatch and Sue Tate: “Use of Unregulated and Unregistered Provision for Children in Care”. DfE (2020)    [Back]

Note 7   The Secure Welfare Coordination Unit (SWCU) is a small unit grant funded by the Department for Education (DfE) for the purposes of administering placements and collecting data on secure welfare. The SWCU has been set up to provide a transparent, dedicated single point of contact for local authorities in England and Wales, to arrange secure welfare placements and streamline the process of finding the most suitable placement matching the individual needs of each young person needing secure care.    [Back]

Note 8   Having regard to the provisions of rule 12.73 and PD12G FPR 2010    [Back]