England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		No. FD23C40581 Royal Courts of Justice Strand London, WC2A 2LL
		31 January 2024

(via Microsoft Teams)

JUDGE PATES:

1. This is an application brought by the London Borough of Lambeth seeking authorisation for a deprivation of TC's liberty, both within his current placement and his future placement.
2. This is an ex tempore judgment following a hearing this morning which concluded at a couple of minutes to one o'clock.
3. The London Borough of Lambeth are represented by their counsel, Mr Dove, who was instructed late in the day and has sought to assist the court in the circumstances and I am grateful to him. The allocated social worker is SW
4. TC'S mother is AB, represented today by her counsel, Mr Alex Scott-Phillips.
5. TC himself has been assessed as competent to provide direct instructions and he is represented today by his counsel, Ms Sarah Branson. I am grateful to her in particular for the assistance by way of documentation and the position statement which was provided to me.
6. So far as his welfare is concerned, the court has the benefit of the advice of the CAFCASS guardian who has been appointed to represent TC'S interests originally within care proceedings and subsequently within these proceedings.
7. In order to set some context, I need to begin with the making of the care order. A four-day hearing was listed before HHJ Robertson to consider the final care plan of the local authority. There had been a struggle, which appears to have continued throughout that final hearing, to seek to devise a plan whereby TC could be safely cared for by his mother. The court gave a judgment which is noted at p.370 of the current bundle and which informs an order which is to be found at p.28 of the current bundle. I do not intend within the course of this ex tempore judgment to quote large sections of that judgment. It is concise, to the point and should be read by way of context with my judgment today.
8. The reality is that, at the end of that process, the judge was satisfied that a care order was necessary and proportionate, so that the local authority could share parental responsibility and, contrary to his wishes and feelings at that stage, place TC at a placement, where he has remained since that time.
9. That period has continued to be one in which there have been efforts, as I shall trace, to ascertain whether it is possible for the local authority to consider a revision to the placement part of their care plan based upon the mother obtaining accommodation at a suitable distance from the areas of particular concern. Those efforts have largely continued throughout the deprivation of liberty proceedings, notwithstanding the fact that the identification of a placement is not the role of the court in authorising deprivations, but to ascertain whether the placement identified by the local authority is suitable and appropriate for such deprivations to be authorised being of imperative necessity in meeting the best interests of the young person. Nonetheless, this was a case in which there was an obvious overlap and a central part of the local authority care planning was looking at whether the continued necessity for deprivations of liberty would be apparent with a placement so far from home when there may be the prospect of a placement close to home with a parent, which might otherwise have been adequate to achieve the necessary degree of safeguarding.
10. Even to today's date, a housing officer attended the hearing ostensibly to assist the court with the latest information as to the prospect of rehousing. The purpose was frustrated by two factors; firstly, the fact that no statement had been filed by the local authority from the housing officer in regard to that progress and, secondly, when asked to unmute, the housing officer was unable to be heard and did not join an advocates' meeting when invited to do so.

I turn now to the background of risk. Prior to the final care order being made, TC lived with his mother, AB. It is fair to say he has had a difficult life.

11. There is evidence which suggests that he, when living with his mother, was very much exposed to the risks attendant upon close proximity to gangs and drug dealing.
12. The police view in relation to risk as late as October 2023 is that if TC had remained in the area, it was highly likely he would either harm or come to harm
13. Having sought to place him out of area, the local authority made an application to seek authorisation for a range of restrictions which were clearly outside of what would be within the normal compass of parental responsibility for a young person of TC's age at that point.
14. The first order was made by HHJ Tucker on 28 November 2023, to be found at page 31. That was a short order leading to a further review before HHJ Reardon on 11 December 2023. TC was in fact present during that hearing and had, I gather, spoken to Judge Reardon prior to the commencement of the hearing. At page 60, she noted that the court requires the local authority to address within the evidence, in readiness for the next hearing, the medium-term plans for TC and realistic options, one of which remained a return to his mother's care. She noted the local authority must continue to consider the mother's housing situation.
15. The matter was listed before Ms Markham KC on 20 December 2023. Her order may be found at page 65. The order itself refers to a written judgment which she handed down, but no copy of that judgment was placed in the bundle placed before me for this hearing. It was thanks to the assistance of Ms Branson that I was sent, on the morning of the hearing, an older version of the bundle which did include a copy of that judgment. I refer to it at G10, being the relevant reference within the older bundle, which was, for no discernible reason, repaginated and omitted key documents.
16. For similar reasons to those I addressed earlier, I do not intend to recite large sections of the judgment of Ms Markham KC. I accept it repays careful reading. In large part, she quotes from the reasoning of the trial judge. I would, however, highlight a few matters by way of emphasis. She said that the local authority openly recognised the conduct and behaviour of TC in his placement and praised him for this. She noted there had been no reports of poor behaviour, nor of any attempts by him to act out, show disrespect or push boundaries. She described this reporting as an absolute credit to TC, and that he showed himself in only the best possible light, and she commended him for it.
17. She was troubled by the fact this application had been presaged by the final care proceedings where placement out of area and authorisation of deprivations may not have been necessary had the mother been able to move, or had chosen to move to a suitable location, or had TC agreed to go to a semi-autonomous placement out of area, but that was not the evidential position before the court. She made clear that every effort needed to be taken to locate an alternative placement for TC and she invited a viability assessment of another person, which was ultimately undertaken and which proved to be negative.
18. She directed the local authority, by 4.00 p.m. on 5 January 2024, to provide a clear plan for TC, to include any proposals for a new placement, to consider whether, if the current placement was not willing to review the measures, an alternative placement would be found. She agreed, for the reasons set out, that it was necessary to authorise further restrictions for a further short period, given the background of threats TC, given the care order had only been made in November of 2023, given the fact, at that time, TC clearly lacked insight about the level of risk, regarding himself in some senses more safe within the locality, but that there would be a review of this matter in the week of 8 January 2024 to consider all of these matters.
19. The matter came before Mr Colton KC on 11 January 2024. For reasons which, again, do not bear examination, that order is not within the bundle, it is not within the other bundle, but I have seen a copy of it and, therefore, I can refer to no page number. Essentially, documentation which had been expected had not been provided and an early return to court when, ostensibly, things would be ready was approved, with filing dates extended to 4.00 p.m. on 12 January 2024.
20. There was a further hearing on 17 January 2024 by Mr Harrison KC. Again, that order does not appear in the bundle. He raised concerns about TC's wishes in particular to comply with the direction for him to be provided with a 'brick' mobile phone and better to understand why the mobile phone, in the first place, is kept away from him. He made, again, a short-term order, pending a further hearing, which he said would be a case management hearing with the aim of creating a legal pathway for the resolution of the issues.
21. I must return to the order listing this hearing, which was on 19 January 2024, before Mr Harrison KC. That order can be found at page 71. The first thing to say is that he did authorise the restrictions, but in an adjusted form. So far as the necessity to authorise physical restraint was concerned, he again commended TC for the fact that there had been no incidents of concern arising since he had been at the placement, and there had been no occasions on which it had been necessary to use any form of physical restraint. On a narrow balance, as at that date, he indicated the court would not discharge the authorisation of the use of physical restraint only due to the circumstance that there is outstanding information to be provided by the local authority, which will be provided by the date of the next hearing. I will return to that in a moment. He indicated the court would give specific consideration to whether it is reasonable, proportionate and in TC's best interests for such restraint to need to be authorised.
22. So far as the provision of a phone and the opportunity for TC to have daily supervised outings, something he had been denied since arriving in placement, save for one occasion, he noted the local authority had assured the court that they would arrange an urgent meeting with the placement provider regarding his access to a phone, the need for him to have daily supervised outings and the need for his conversations with his family to be on loudspeaker and supervised.
23. The restrictions which he authorised until 23.59 today included that TC's time outside the placement to be supervised by staff at all times at a ratio of up to three to one, physical restraint by those qualified to use such restraint may be used if TC tries to leave the placement or escape from staff outside of the placement, or in circumstances where his behaviour poses a risk to himself or others. Rather than permitting two to one supervision, he said that TC may be subject to loose supervision or support when he is within the placement and that did not mean he is to be shadowed by a member of staff at all times. He authorised doors to be locked to prevent TC from leaving the placement and the provision of window restrictors and alarms on windows. He authorised CCTV to be used to monitor TC, save for the bathroom and bedroom areas. He authorised the use of sharp objects to be subject to supervision, subject to a check-in and check-out arrangement, and the restrictions preventing TC from leaving the placement unaccompanied were authorised "on the condition that arrangements are made for him to spend time outside the placement for a minimum of two hours every day."
24. It is a matter of importance to note that the authorisations were the maximum permitted restriction which the local authority were authorised, in conjunction with the placement provider, to provide. Any restrictions which were outside the context of parental responsibility and amounted to a greater restriction than had been authorised amounts to an unlawful deprivation of liberty.
25. The local authority took no steps after that order was made to check that the arrangements had been reduced, upon notice that the placement were reluctant to the point of refusing to reduce the restrictions, failed to take any, or any proper step to seek to bring the matter back to the court or to seek urgently an alternative placement which would provide the maximum restrictions and not beyond. That, in my judgment, is a profound failure for which the Head of Service of the local authority should provide a full explanation as to the circumstances under which the local authority were complicit in a continued deprivation of TC's liberty without authorisation as soon as they became aware that the changes which had been authorised to the maximum permitted were not in fact implemented by the placement. That evidence will come in before the next hearing. The Head of Service should also attend the hearing remotely in order to address any questions raised of him or her by the judge concerned.
26. The court may give further consideration at that stage to whether the papers should be released to the Official Solicitor to decide whether there is a necessity for any investigation of a claim for damages in relation to any failure to abide by the limits of the order.
27. The order of Mr Harrison KC also set out a range of case management directions. The intention was that the court, on this occasion, would be properly informed and prepared for what was listed to be a contested hearing, two hours, which was in fact listed from eleven o'clock until 1.00 p.m. What occurred was a failure by the local authority to file the evidence either by 23 January or 26 January, or at all, in so far as it is not contained within the statements belated filed by SW, dated 29 January 2024. The local authority made no application to seek to extend time or to seek relief from sanctions in relation to the statement which, in fact, technically, is caught by the provisions of the FPR so that it is not in fact before the court. I have had regard to it on the basis that I should not allow the failure of the local authority to stand in the way of the court maintaining a clear eye on the welfare of TC and, to that extent, without an application having been made, I grant the necessary relief from sanction so that they are entitled to rely upon the statement of SW filed late.
28. All parties were directed, by 9.00 a.m. on 29 January 2024, to file position statements. The guardian was given the option of filing an email. In the event, none of the parties were able to file by that date, no position statement was prepared on behalf of the mother, no position statement was prepared on behalf of the guardian, nor an email prepared. I was in receipt of a detailed position statement from Ms Branson, for which I am grateful, of which I was fortunate to have some limited opportunity to read on the morning of the hearing. The local authority instructed Mr Dove late. He sought to endeavour to provide a case summary this morning. That was late and was Msing substantial instructions for reasons which I will explain. The guardian has not been able to file anything in writing, but has provided an oral analysis today.
29. In terms of the overall non-compliance which has been evident by the local authority in this case, I can do no better than, with gratitude, refer to the schedule of non-compliance, as I shall refer to it, in the position statement of Ms Branson. That appears to me an accurate record of what should have been done and of what has not been done, or not been done on time. That is, in my judgment, an appalling presentation by the local authority and has contributed to hearings being vacated and relisted, wasting finite court time.
30. The muddle, as I would describe it, has continued this morning because when Mr Dove sought to address the court it was apparent that, although he had been working earnestly since early this morning and engaging with the social work team and the advocates to obtain clarity, there remained a complete lack of clarity about elements of the local authority plan, whether, of importance, they had actually approved the placement that was referred to in the statement. It was not until some time after twelve o'clock that he received an email from the allocated social worker to confirm a service manager had formally approved the placement.
31. The time required to necessarily allow these instructions to be taken and information provided also allowed the court to consider other documentation, some of which was also not in the bundle. Consequently, although the hearing had been listed for two hours, from eleven until one, as a consequence of what I have described as the "muddle", it was impossible for the court to give judgment before 1.00 p.m. and, accordingly, the matter was put back to 2.30pm to allow all parties a proper lunch and to ensure they were ready to proceed, and the court adjourned the matter part-heard, notwithstanding other urgent matters which required the court's attention this afternoon.
32. The updating statement of SW, dated 29 January 2024, is to be found at page 196. She does comply with the order of Mr Harrison KC in so far as she sets out the current restrictions and sets out her analysis in relation to them. The reality is her overall analysis is one based upon the fact that because there has been no effective step-down plan implemented, notwithstanding there was developed a road map, that it is necessary to maintain the same restrictions which are applying to the current placement, even though they are not applying them, and to the new placement, just in case – those are my words, "just in case" – TC ignores the rules around keeping himself safe were he to move closer to London, which would make a return to the local area technically easier. It is pointed out that a solo placement offers some reassurance about other residents and the Community Safety Team have not registered any concern about individuals or risks in that area. It is reflected on that TC has sought to and has engaged with a community organisation, who engage in contextual work around his safety, and that will continue, having started on 22 January 2024, following the local authority finally approving the funding for that programme.
33. What I do not detect in her analysis is any analysis of the lack of incident within the placement, any engagement regarding his understanding of the need to comply with reasonable rules to keep him safe, his understanding and insight into the consequences of him ignoring those rules whilst living in his new placement and returning, consequences which it is said on his behalf he is more than fully aware of. Whilst insight was regarded previously as a key component, I do not detect any substantive analysis beyond a recognition that nothing has changed since 5 December and, therefore, we should work on the basis that we are back as at 5 December 2023 and essentially ignore the lack of any reaction to any of the significant deprivations which have been applied.
34. The same issue applies to the loose supervision or support. It is suggested that there may be a staff ratio of two to one, which, in fairness to the local authority, was abandoned by way of submission by Mr Dove and what was sought was no more than a level of loose observation which would not be a deprivation of liberty in any event.
35. She describes, in terms of doors being locked and window restrictors, that, without that, there is a possibility that TC may attempt to abscond from his placement. Apart from saying the same point as before, namely the possibility may be greater given the care providers will be new to TC, there is no attempt to demonstrate why that is a real possibility, why that is a possibility that provides an imperative requirement for the doors to be locked in that way. There is reference to monitoring by CCTV, but I am still unclear whether the placement even has CCTV and how that would add to the general availability to observe.
36. It is said that use of sharp objects may be subject to supervision on the basis of a check-in and check-out arrangement, and it describes a history of reports of possession and a conviction for possession of a dangerous item and that this should continue in the meantime. There is no assessment as to whether there has been any attempts, any concern, any basis to think that TC does not understand the danger of having access to items such as knives.
37. The provision itself is described as a semi-independent provision that is able to accommodate a DoLS order and seems, in fact, closer to the sort of provision that the local authority might have been inviting TC to move to previously within the course of the final hearing, in respect of which it is not clear they would have sought any deprivation of liberty at that stage.
38. In fairness to SW, I see within her the desire to try to have a step-down arrangement, to seek a change and to recognise that there have been failings thus far and a desire to avoid any risk as she would perceive it. It is, in one sense, early days. What I have not detected is any attempt to sit down, thus far, with TC, to go through the road map in detail as applicable to the new placement and to set out the rules that will be expected, and to explain to him that if he can work with the local authority and the placement to manage this, then we will steadily look to ease those rules, and the restrictions will be appropriate and based upon those matters which can be exercised within realistic responsibility of the local authority as a corporate parent. No doubt that will happen in the next day or two and in meetings with the new placement.
39. The additional documents that I was referred to include the following. The minutes of a professionals' meeting which are undated but, as they describe themselves as the day before the hearing on the 11^th, must, I presume, have taken place on 10 January 2024, to be found in the older bundle, as I understand it, at C96. At that stage there was concern expressed by the current placement about a lack of information, a lack of understanding in relation to the nature of the risk. So, in fairness to that placement, one of the issues has been what they regard to be the lack of information and engagement from the local authority, so that they have adopted the most cautious of approaches in the absence of them having a fully informed assessment, even in the face of the court coming to a different view in terms of the maximum permitted.
40. There is an update from the placement dated 20 December 2023 which was forwarded to me this morning, prepared by KC of the placement. That update describes TC, since his arrival, as being compliant and engaging well with staff. It was noted that may well be influenced by the level of staffing in place, but she goes on to say this:

"From the outset, communication from the local authority has been disappointingly poor. Despite numerous attempts, we have only had one 72-hour meeting where very little information was provided. I have sent multiple emails to the social worker seeking essential details such as chronologies and paperwork to understand why TC is placed with us and the reasons behind the existing DoLS order. Unfortunately, there has been no response, making it challenging for us to address TC's questions and understanding of the matter."

41. No doubt the Head of Service will wish to give consideration to the circumstances under which a placement describes themselves as being placed in that position on 20 December 2023.
42. Within the same email, she had proposed that they maintain the existing restrictions, with a comprehensive review planned for the end of January 2024. In a placement update dated 17 January 2024, KC also sets out the up to date position. Again, I was sent that by email this morning. She notes that there were, as at that date, no reported incidents or physical interventions since the arrival of TC, reflecting a positive trend in his behaviour. She noted nighttime staffing in his bedroom had been reduced, reflecting an increased level of trust and confidence in his ability to manage independently during those hours. During the day, a structured staffing formula has been implemented with two staff members present in the house and an additional floating staff member available. In community outings, three staff members are accessible, ensuring a safe and supportive environment for him as he begins to access community activities. Overall progress is described as positive.
43. The final entry was an update from the community organisation, dated 31 January 2024, a short email confirming that visits have continued with TC. Since their last update there had been no further information via community intelligence, they would continue to monitor that and, as S, who I presume is the worker assigned to TC, builds a relationship with TC, this should allow TC to feel able to share anything which may be going on under the radar.
44. Thus, the instructions given to Mr Dove were originally to seek an order until 20 March 2024. That changed during the course of the hearing to a short review after placement at the new property. He sought the continuation of the community-based supervision, largely on the basis that nothing had been tested so far and it had been originally required. He sought to maintain the physical restraint provisions, again noting these had not been required. He sought to maintain the ability to search and recover dangerous items, sharp items, again noting that nothing had been removed. He sought to maintain the doors being locked and said that whilst there had been a road map set out at p.399, there had been no step-down plan yet given the newness of the plan for a movement to this placement. Whilst TC had still not been provided with a 'brick' phone, that would be discussed promptly with the new placement, but it was the combination of the proximity of the new placement to Lambeth, the history of access to dangerous weapons which suggest there needed to be authorisation for those restrictions to be applied.
45. The mother, through Mr Scott-Phillips, supported the position of TC. She is disturbed by the lack of information and supports the move to the new placement. She wants the placement to be a safe one for her son, but she wants it hopefully to provide a necessary degree of freedom for him.
46. Ms Branson sought to expand upon her detailed position statement. She said there is no evidential basis for the continuation of a DoLS either at the current placement or the new placement. It was an outrage that the current placement were seeking to provide restrictions which had not been authorised by the court to the degree they continued to apply them, and the local authority had taken no proper steps to alert the court to that issue. She submitted that this was precisely the situation where the local authority sought an order just in case there was an issue, without any underpinning analysis as to the evidence during the period during which TC has been in the placement to justify that being a basis for a continuation of the restrictions.
47. She submitted that TC wanted to move to the new placement, this was a willing move, and he has moved a long way from the lack of insight demonstrated at the time of the initial hearing, as reflected in the position statement at A7. He understands that he will need to move to the new placement. He understands that he will not be permitted to go to Lambeth because it poses a risk to him. He understands that if he does not engage reasonably, with proper expectations upon him, to keep himself safe, then the local authority will come back to court, will seek authorisations for a deprivation of liberty and they may be more stringent than he would otherwise wish. There is no evidence, she says, of any poor behaviour or lack of understanding of the need to work with the local authority, and, if anything, the placement has showed, in her words, that TC "is a young man who is able to stick to the rules imposed upon him."
48. So far as physical restraint is concerned, she will have observed, of course, what Mr Harrison indicated as to the delicate balance he was striking at that stage, but describes this as an example of an anticipatory order, in other words an order that might be necessary, but one which is not justified on the facts, and relies upon the authority of Hertfordshire County Council v NK [2020] EWHC 139 (Fam).
49. She addresses the fact that the local authority, despite there being directions to produce the assessment if there is an assessment in writing to justify the removal of a mobile phone, have failed to do so. There is no assessment and TC has simply been frustrated from having any access to any phone to date.
50. So far as the guardian is concerned, he expresses his disappointment that the placement had not complied with the DoLS order, and that has essentially prevented testing and assessment of progress. He also gives TC credit because TC has behaved well, he has not reacted to difficult circumstances and the guardian accepts that there have been very difficult circumstances which, in many cases, might have provoked a reaction from a young person. He notes that during the course of the final hearing, extensive time was taken up looking at alternative options, but no progress was capable of being made at that stage and there was a significant lack of insight by TC regarding his own safety. His overall concern is the move from a strong position that TC felt safe in Lambeth to the position now where, as the guardian puts it, it would be premature to life the restrictions, and he may, because of proximity, be at greater risk of gravitating back to Lambeth.
51. I asked the guardian if he had sought to speak to TC and he told me that he had sought to do so within the proceedings but it had been made very clear that TC was not willing to speak to him. I asked him if he had made any recent request to speak to him, given the period of time that has passed, and the answer was that he had not. He apologised and said that time pressures had contributed to that situation, but the reality is that he has not sought to have the opportunity to see whether TC would speak to him and would be willing to describe to him why progress was necessary. Certainly, the court's view is that TC should have been approached and, if approached, I would have expected TC to have at least spoken to the guardian and engaged with him to provide that additional insight.
52. I now turn to my overall assessment. Are the restrictions within the current placement and, at this stage, the new placement necessary and proportionate? In my judgment the answer is no. The first decision I take is that I discharge the authorisations which apply in relation to the placement where TC currently is, and which will apply at the moment of his reception at the new placement. The local authority and the current placement have ignored the limits of the last order. In my judgment there is no proper basis to allow authorisations to a placement which has neither respected them nor implemented them in circumstances where the local authority has taken no proper step to address the unlawful deprivation of liberty.
53. That is not my only reason, and it ties into the reasons underpinning my assessment of the necessity and proportionality at the new placement too. There is, in my judgment, no sufficient evidence from Ms R or the guardian as to the risk at this stage which would justify the imperative of continuing the authorisations in relation to TC's placement, either currently or at the new placement. There has been a clear lack of analysis in relation to the development of insight, in relation to the willingness of TC to understand and comply with rules which will apply to the new placement, which are designed to keep him safe as an older teenager. There has been, in my judgment, insufficient evidence to demonstrate any assessment of his understanding of those rules and the balance to be struck between making him subject to a continued deprivation as against the negative impact of that deprivation which he has struggled to understand, particularly in circumstances where it has not been authorised by the court. Yet, notwithstanding that, he has not reacted in a negative way, he has continued to behave responsibly and has sought to provide instructions to Ms Branson which demonstrate that he accepts that there will be limits and he will be aware from being part of the hearing that if he were to take this as a passport to do what he wants and to expose himself to risk, then the authority will be back within a matter of days, seeking orders to restrict his liberty on the basis that he has not demonstrated any understanding. What, in my judgment, they have failed to do is to demonstrate a convincing reason today that there is such a need.
54. In my judgment, TC will need the local authority to sit down with him and explain what the rules are, within the placement, and be given the responsibility to comply with those rules. It is important that he has the opportunity to be shown the respect, to understand, to contribute and then comply so that he can be responsible and held responsible at his age for the impact of his own behaviour, something which he says, through Ms Branson, he is fully aware of.
55. I take into account his engagement which he has sought with the community organisation. That work is instrumental and will be part of the work which needs to carry on within the new placement.
56. In my judgment, there is, accordingly, no necessary imperative to authorise restrictions which amount to a deprivation of his liberty, either now or in the new placement. What I propose is that there will be a review hearing listed on or about 1 March 2024, with a view to that being a final hearing at which the application can be withdrawn or dismissed, but it provides a window to assess, as TC will be fully aware of, his engagement and the local authority's support for him to demonstrate that he will work effectively in the placement without the necessity for a deprivation of liberty and take responsibility for the support and safety which all parties want to seek him to have.
57. For those reasons set out in this ex tempore judgment, those are the orders I intend to be set out today. Subject to any application arising out of that decision or any clarification of this ex tempore judgment, that is my judgment.