Hello and welcome everybody. Thank you very much. Indeed for joining me today. My name's Safta Mahmoud. This then is session two of the session through data law where I'm taking you through secure accommodation and deprivation of liberty orders in Children cases, the practice procedure and themes as you will have gathered. Then from the first session, the aim is to give you a broad understanding of the law practice and procedure surrounding secure accommodation applications and also done orders which we'll be applying for within Children proceedings. And this, as you can imagine is a an area that's relevant for both those of you who work in the private practice field and also local authority representatives also. And in terms of the course summary, then you remember in the first session, I spent a fair bit of time going through with you sort of law surrounding secure accommodation, particular. So I spent some time on that. We went through what secure is how it works. The criteria under section 25 of the Children Act in section 119 of the 2014 Act in Wales, we looked at that, looked at the regs, looked at the position with the rights of the child, the practicalities involved in involved with secure. And uh we also then looked at some of the limitations with secure orders. Obviously, the main one being the significant restriction in secure placements available. So we looked at that and uh we then spent some time looking at a position with Don orders, deprivation of liberty. Is that case of A and F 2018 that I mentioned with the President family division took us through the need for court authorization. If one is seeking to deprive a child of their liberty to make sure that one is then not falling foul of civil and criminal liabilities. And we looked at the acid test that need to satisfy the criteria in so far as those are concerned today, what I'm going to be doing then is developing these themes in uh more detail where I want to look specifically at uh in particular, the continuing difficulties with the severe restriction of placements. And also I'll be taking you through specifically the Supreme Court decision and re key the 2021 decision to see what uh key pointers were raised in that case. And then also circumstances where it may not even be appropriate to seek a dull order. For example, what if the child is severely disabled, for example? So we'll have a look at that and towards the end of the session, I'll take you through some of the aspects surrounding the development surrounding uh placements in terms of regulated and unregulated placements, insofar as that's concerned. So we'll have a look at that. So I'm looking at the laws of June 2024. So as I mentioned in the last session, uh there continues to be concern raised by the judiciary over the lack of secure accommodation units. And this therefore has led to more, more local authorities going down the route of seeking a dollar order with a muter than having the child placed elsewhere in a separate identified placement, which isn't a approved secure unit. But it's one where there is going to be a certain degree of restriction and deprivation and therefore, which for which they are seeking court authorization in the form of a dull order. And therefore inviting the judge to use section 100 of the Children Act to enable that order then to be made. And concerns over lack of secure units was once again identified in these cases of ez a child in 2020. And also then in the Langhi Count Council and G case on availability of secure accommodation. And in that particular case is one where the local authority went before the judge. If I remember, I think up to four times securing, seeking a renewal of the the dollar order, given the need to have the child placed in different units uh to continue to meet the child's welfare needs. And again, it highlights the fact that the judge felt that he was really very little more than uh effectively um almost for stamping what the local authority was seeking in those circumstances because the judge felt that there was very little alternative options available. But given the difficulties surrounding uh placements, this is something that was identified and looked at in some detail uh by the Supreme Court in the case of RE T A child in 2021. This was a case heard in Wales and uh this was a case whereby the leading judgement was hand done by Lady Justice Black. And um the court at that stage said, and it of course continues to be the case that there is a shortage of provision for Children and young persons whose needs require uh these limitations as to their liberty. So, of course, in 2021 that was raised an issue even now in June 2024. As you can imagine, this still continues to be an ongoing issue. And uh her leadership did say that there has been an increase in the use of the in her jurisdiction. Uh Two key issues were being raised. One was there was a question mark as to whether it was permissible exercise of the court's inherent jurisdiction to make a child authorizing a local authority to deprive the child of their liberty in this sort of case? Or is it even permissible, should, should the inherent jurisdiction of the High court even be used in these circumstances. And um and uh the child's position was the child who was 15 years of age at the time was arguing through lawyers that it was not permissible use. And this, by using the inherent jurisdiction, this was actually clashing with the statutory scheme and shouldn't be used. Uh So the child was arguing that and then the other argument was the issue of consent, which I'll take you through. So the child was arguing through her lawyers that the main reason was that uh invoking in her jurisdictions through section 100 bar, the use of the inherent jurisdiction for this purpose, it mustn't be used, inherent jurisdiction mustn't be used to cut across the statutory scheme and the Children Act of 1989 there was a provision already made available under section 25 of the Children Act or section 119 of the Social Services and Well being Wales Act in 20 of 2014 to enable secure accommodation orders to be made and therefore to use the inherent jurisdiction. This way it was found was an appropriate use of that. And therefore by doing it this way, it was really cutting across the, the statutory scheme which was already available. And the child also argued that the deprivation of liberty authorized under inherent jurisdiction ff of article five of the European Convention on Human Rights, which provides that no one shall be deprived of their liberty safe for in accordance with the procedure prescribed by law, which was again set out within section 25 or 119 respectively. So that was the first issue that the child was raising. And then the second issue was even if the high court could have recourse to its entire jurisdiction to make this type of order, then what about the child's consent to the proposed living arrangements? So the child was arguing that um consent was highly relevant to the evaluation of whether it was in the child's best interest to make these orders. And that it was contrary to her best interest to make the order given her consent to regime. So basically, the child was saying that if she consented, then the order could not be made. She said she had the capacity to consent. And therefore her argument was there was no need therefore for the court involvement because her consent is order was required to legitimize the arrangements. And therefore, it was important to her that confidence was placed in her decision. And therefore she said, and she was arguing that uh in order to satisfy the acid test, it's got to be the absence of the child's consent. But here of course, she was consenting and therefore on that basis, the asset test was not met. And therefore, the Dodd order simply could not be made in those circumstances. Well, looking at both of these arguments that were being raised. Firstly, where does do the High Court stand when they are being invited to make these dull orders in relation to using the inherent jurisdiction. So should they be using it for this purpose? And a ladyship did say that section 25 of the Children Act and section 119 of the 2014 Act are essentially of the same effect. They serve two purposes. Firstly, making a secure order and in making the order, it does place a limitation on the way in which the local authority can provide accommodation is looked after. Ok. So of course, um these orders allow the child to be placed a secure unit. But what if a secure unit is not available? What if the secure unit won't be able to meet this child's needs? And secondly, um you need to satisfy the criteria for secure and what if that's not made? So therefore, what do you do in those circumstances and can in those circumstances, the in how a jurisdiction be used? And um what was being argued is that it was being argued that in these circumstances, particularly by the local authority and the respondent parties, that it was not only lawful to use the inherent jurisdiction, but in fact, it was vital to do so because by not doing so, the child would potentially be at, at risk of harm. And by therefore, in enabling the court to use inherent jurisdiction on the high court, you were acting in the child's welfare, best interests and enabling the court to invoke in his and jurisdiction. Therefore, to use this as a as a route to prevent the child from suffering significant harm. So, not only could it be used and not only was it lawful, but in fact, it was argued that it's vital to use this in these circumstances. So that was the first argument. Now, the court therefore decided that the inherent jurisdiction therefore is available to be used by local authorities in these circumstances. And it should not be that the inherent jurisdiction is entirely unavailable to local authorities. There will be cases where it's not needed. But if it is needed, such as in these cases where by not doing so, the child will ordinarily be at risk of suffering significant harm and the form maybe self harming being a risk to others. A risk of child sexual exploitation, perhaps a risk of uh being involved in other activities which may place them at significant risk that in those circumstances and how a jurisdiction can and should be used in those circumstances. Does the inherent jurisdiction cut across the statutory scheme? That was the other argument that was being raised? Ie um the child was arguing that you should not be able to use the inherent jurisdiction to place the child in a placement uh other than approved secure units for purposes of accommodation. And the court in fact decided that it can be used even in those circumstances. Um It doesn't clash a costly statutory scheme in this regard. So for example, if the local authority cannot apply for an order under section 25 because say there's no section 25 secure compliance, secure accommodation available, which is the reality in many, many cases. Or if let's say they're not going to meet the criteria for an order under section 25 or the secure placement may not be able to meet the specific identified needs of the child. Then in those circumstances, the uh in home jurisdictions through section 100 can and should be used to fill the gaps. And by doing so, it doesn't clash with the statutory scheme and therefore on that basis, it was felt that it can and should be used in those circumstances. As I mentioned a second main argument that the child was running is that which related to the issue of consent. So the child was arguing and you can see here that the court looked specifically at that at this point, the issue about consent. So the child was arguing uh that um the terms of uh or the nature of the position as the child put it is if valid consent is present, a person is not deprived of his or her liberty. And therefore the child was arguing that if they consented, they are not deprived of the liberty. And therefore, there was no statutory basis upon which to make the secure order in the first instance. And therefore, there was no welfare or article H right upon which to make the order. But in fact, the court said that this was a rather too simplistic understanding of the position. The court said this is a simplistic uh analysis of the court's role in these types of applications. The court said that any consent but a child will form part of the circumstances in evaluating whether or not is necessary. Yes, of course, of course, going to take into account the child's apparent consent, but of course, it's got to be weighed up. So as you can imagine, and this case illustrated it any consent arguably needs to be enduring. So for example, and it's got to be authentic. So for example, if the child is consenting to their own deprivation, then are they, is it authentic in a sense that are they generally agreed to that particular form of restriction? And is it enduring? Is it going to be for a reason? Period of time? What if they change their mind a day after, for example, or a few days later? So therefore, yes, consent will be taken into account, but it will be within the bigger um feature of or considering all the circumstances of the case uh and therefore to enable the local authority and indeed the court then to decide whether or not to make the order in those circumstances. So yes, it will form part and part of the of the overall circumstances and then deciding enabling the court then to make a decision as to whether or not to uh to make the order in the circumstances. So therefore, appeal by the child for that uh that order to be made in these circumstances was one that was dismissed. Uh The uh court said that the principal argument that was written, which is that the in jurisdiction cannot be used to authorize a local authority to do private childhood liberty uh was rejected for the reasons set out and, and to be fair to the child. Her ladyship did say that the judge fully understood the deep anxiety the child had with struggling to deal with the circumstances. And it was fortunate that I didn't have jurisdiction was there to fill in the gaps in the present provision, but it was an imperfect stop gap, not a long term solution. And I'm sure many of you will have seen the court raise those issues in some of the dole cases that you will have dealt with that. These are not um long term solutions. This is really providing a stop gap until there is more significant change in primary legislation going forward. Now, Lord Stevens, who uh Lord Lloyd Jones and Lord Hamlin Lady Black agreed with also went further and took the opportunity to also raise a number of other issues in this judgment. And that is one of the things that Lord Stevens emphasized uh was this if Dean Howard jurisdiction is being used in this way. Then the court is authorizing the local authority to uh use the jurisdiction. It's not requiring them to uh place the child in these units in these circumstances. And that's therefore very important. So the in Hamit jurisdiction, it's a permissive order if, if it's granted. So initially you invited the court to vote in Hamer jurisdiction. And then secondly, you're inviting the court then to basically grant a dollar order, which then gives that authorization. So it authorizes the local authority to place a chart in one of these units. It doesn't require them to do so. And that's very important because if the child is going to be placed in, say an unregistered children's home for which uh it is possible for there to be prosecutions brought by Ofsted or Welsh inspectorate in relation to the provider of that children's home. He's not registered and they could be prosecuted and convicted for an offense under section 11 of the Case Standards Act of 2000. Then it's not that the court in granting the secure order is in any way requiring the child the court rather than granted a dull order rather is not requiring the child to be placed in that unit. They are authorizing and that's quite important because the court by making a don order is not granting any form of immunity from prosecution. It's not saying that look, we've given you this order and therefore you must place that child via the auspices of this done order in the placement, which happens to be an unregistered children's home and therefore, which is possibly susceptible to prosecution against a provider by the, uh, by Ofsted, for example. And we're not saying you must place a child there, but we authorize the initially. So if you feel it's appropriate, we've given you the order and, and there you are, but that doesn't give you immunity from prosecution. And of course, if a prosecution is brought, that it's a matter for the criminal court to decide whether any offense has been committed and any appropriate sentence uh thereafter. And one of the other things which the uh Supreme Court did emphasize in we key was that if the court is going to be invoking the, uh the determine jurisdiction of the high court and therefore granting a secure or sorry, a dull order in these circumstances, then one must make sure that the guidance issued by the President of Family Division is followed. Now, this guidance, um, you'll see has, in fact, recently in September 2023 been superseded with more to date guidance, but this guidance has of the time of 1820 21 was, uh, as what I mentioned earlier in the first session, which is whereby the court needs to be satisfied that the provider of the unit must, if the unit is not regulated and if it's capable of being regulated, must, then take the necessary steps to apply for authorization and that has to be done swiftly and the court can expect and needs to expect that that will be prioritized and uh and dealt with. So there was that expectation at that time to ensure that that guidance was followed. But as you'll see later in the next session, which I'm gonna be covering with you that guidance of 2019 and then amended in December 2020 has now been superseded by the more recent guidance in September 2023. So in relation to the position with the possible commission of an offense, this is where, as I mentioned, there is the possible commission of an offense under section 11 of the case Standards Act of 2000. And, um, the, um, the court did say that in those circumstances, even if, say there is a dull order made for a child to be placed in a, say, children's home, which is unregistered that doesn't relieve uh, uh the criminal courts and doesn't prevent the criminal courts from taking uh criminal proceedings if needs be. And um, even if there could be the commission of an offense, this doesn't prevent the family court under the jurisdiction route from taking the positive step of placing a child in one of these unregistered placements as long as there was absolutely no other alternative where the child is likely to come to grave harm if the court does not act. So you can see in these circumstances if necessary, the court uh will be making uh those orders if uh if like say they are necessary. Ok. So really, really important case in so far as that's concerned now, that then brings me on to this other key issue, uh which is relevant uh at the moment. Of course, it's a recent decision. Uh This was uh a case uh in Peterborough. Uh and this is Peterborough Council against mother. This was a decision by Mrs Justice Levin sitting in the High Court of Justice on the sixth of March 2024. And it was a case involving a dole application in relation to a child who was simply disabled. And uh essentially, this is a dull order application in relation to a child who's age 12, who is severely disabled and she has profound and enduring uh disabilities. And uh this is a child who has various disabilities. Uh So for example, uh her condition, uh her, her physical condition in particular is such that she has, for example, uh a uh a disability which affects her, her spine being uh curved and she's immobile. And uh she is um uh very is, is finds it almost impossible to be able to move unaided. She is fed through the stomach uh through a gusto genal uh tube. And therefore, uh this is a child who um through um uh her disability, she's also global. She's also got global developmental delay um, is somebody who is unable to, uh, be able to meet her own needs unaided. So, for example, you've got a lot of members of, uh, the, um, the staff who are constantly looking after her, being able to, uh, feed her, clothe her dress, her undress her. Um, so she's not physically able to move herself unaided even if she wanted to do so. Now she was subject to a full care order. Uh And she lived with foster carers who provided her with this very high quality of care that her mother was very defaulted to her. And the local authority applied for dole order to what's called a doll's list, a deprivation liberty list of the high court. And like I say, the restrictions that the local authority was seeking were quite significant. And um these took the form of, for example, there was going to be 2 to 1 supervision. There was going to be the need to uh continue to authorize um her care needs being met in terms of helping her to be, to feed the child, to clothe her, to dress her undress her, to enable her to be mobile, to an extent, uh to enable her to be like say uh uh to to to be based. So obviously a lot of the significant aspects there, there was going to be a high staff ratio for her. And the question is should we should be made subject to a dull order in those circumstances. And um quite apart from whether or not the charge should be made subject to a dollar order or not, there were a number of aspects of the restrictions which the court felt did not even amount to a deprivation of liberty. And in fact, a lot of restrictions her ladyship said were basically analysis of her care provisions. And this was really a case whether or not she was severely disabled. Now, the guardian opposed um the uh the the making of the D order on the basis. It was not necessarily on the facts of the case. Now, her leadership did say back in March this year when this case was handed down that over the previous 12 months, there had been approximately 1700 done orders that had been made by the courts. So ladyship was saying that there was a depressingly common uh matter in the family division of the High Court in terms of these orders being made in these circumstances. So you can see obviously a lot of these orders being made uh in these circumstances. And the big question was, was uh this one of those cases where such an order should be made. Well, this is where as I mentioned earlier in the previous session, if one is looking to deprive a child of their liberty, and this is where you got the tests are set out in that ST in Germany case. And also the Cheshire West case. And this is where one has to show that the deprivation of restriction has to be for more than a negligible period of time. The child must not be able to consent to their own confinement. Um It's got to be imputable to state, she's got to be subjected to continued supervision and control and not free to leave. Well, a local authorities said that the, the criteria met and the local authorities said, ok, the fact that she is immobile, the fact that she, even if she wanted to, he is physically unable to be able to leave, the placement should not really detract the local authority from seeking the dollar order because by doing so, by not seeking authorization. In this way, one is actually discriminating against disabled persons by applying different standards to them to the rest of the population. So, in fact, the local authority took the view. Now, actually, we do need authorization just like if this child didn't have this disability. And the, the local authority said that this level of disability that she had was not relevant to whether or not there was in fact deprivation of her liberty. The fact that she had no volition or free will was irrelevant to a legal issue. Um And her foster carers were acting as agents and were excising complete control over her uh uh physical liberty. So the local authority will view that the dollar order should be granted the guardian, like say opposed what did the court decide? Well, the court took the view that the Cheshire principles here were taken to extremes. So the court took the view that in fact here, um this was a case where the local authorities application took the Cheshire West cases to a logical but extreme conclusion which the judge said defied common sense. And it wasn't required by the terms of the Supreme Court decision in re t that 2021 decision. It was important to know that Cheshire Act, the Cosette was concerned with three individuals, inability to consent to deprivation of liberty and their power complies with the restraints placed upon them. They were all physically capable of leaving the property in the Cheshire West case. And really the orders were being sought to stop them if they try to do so. That was not the case here. This is not a child who was capable of leaving the property, this was not a child who uh one wants to stop from leaving the unit if they want to do so. That was clearly not the case. So, in fact, her ladyship did say that this case presented as a very different type of circumstance altogether. And in fact, her ladyship said that Cheshire West did not deal with the situation of a trial such as in the current case, who's in who's incapable of leaving because of a combination of both their physical and mental disabilities, not because of any restraints placed upon them. And therefore on that basis, uh her ladyship did say that she could not find that the criteria made out for this child to be deprived of her liberty and therefore for the necessity of a, of a non order being made. Uh And um this is one where she could not leave the unit, not because she, the state wanted to restrain her from doing so in the circumstances where she wanted to, she couldn't leave the unit because of her profound disabilities, not any action of the state, whether by restraining her or failing to meet the state's ob obligations to enable her to leave in those circumstances. And her ladyship did say that uh the this application that had been lodged seemed to confuse two things. Yes, the child was undoubtedly under close supervision and control, but that wasn't to prevent her from leaving. That was to meet her care needs part of a care package and it did not need to be and was not for the person preventing her leaving because she was incapable of leaving due to her physical inability and not because of any desire or intent to leave. It was simply not a concept of which she had any consciousness on. And for these reasons, the ladyship did say that it was not deprivation of liberty. And therefore because of that, there was no requirement to seek an order on a dull order. And if application would be refused So you can see the, uh, the significance of that, which is obviously a very, very important decision that we've got to bear in mind. Now, the next part that I want to discuss with you in this session is where do we stand there with the position with on regulated placements? And this is where, uh, we need to look at the position of placement of looked after Children 16 in unregulated placements. And this is where there were changes that came into effect on the ninth of September 2021 in England. So these these particular provisions I'm going to be mentioning apply in England, uh not in Wales. And this all came to a head in these four cases. Uh The Thames side, NBC and AM and others. There were four cases within this Thames side were the leading local authority that applied in relation to this. And this was a case handed down on the eighth of September. So the day before these new regulations came into effect and this was a judgment handed down by Mr Justice mcdonald. So there were four cases, all which really looked at the uh position surrounding the coming into force the day after on ninth of September of the care planning placement and case review, England amendment regs of 2021. And basically what these regulations provide for, in essence, is the prohibition of placement of a looked after child at the age of 16 in unregulated uh accommodation facilities. So the question before the court was because these regulations came in on the ninth of September 2021 which basically provided for the fact that as from that date in England, it was no longer permissible for a local authority to enable a child under 16 to be placed in a placement which is unregulated. Then in those circumstances, did it still remain open to the High Court to authorize using its inherent jurisdiction? Therefore, making a dollar order for a child in those circumstances, ie under 16 to be placed in such an unregulated placement, even though placement by the local authority became prohibited on this amended statutory scheme. That was the question. And his lordship said yes, his lordship said yes, subject to a rigorous application of the President's guidance of November 2019. I did a placement of Children in unregistered children's homes in England or unregistered care homes in Wales and also the addendum that came in in December 2020. Subject to strict adherence to that. If the court felt that it was in the child's wealth for best interests to be placed in one of these unregulated placements, you know, it would become unauthorized because by not doing so, the child would be susceptible to suffering significant harm. And therefore this met the strict criteria there. Then even though it would become uh unlawful to have Children placed and accommodated in such placements. As from that date, the court in exercising it in our jurisdiction can and would authorize it. And this is one where uh the parties and interveners. They very much took the view uh that each of the local authorities and the Guardians and the Secretary of State for Education after they s they were saying that it did remain open to High Court to authorize these circumstances. Notwithstanding these amendments that were coming into effect. And of course, his lordship did say that because of these regulations which were coming into effect a day after section 11, subparagraph five of the Care Standards Act was making it a summary offense for a person to carry on and manage a children's home without being registered. And this applied to providers, not the local authority making the arrangement. So putting it simply uh there was that prohibition of placing a child under 16 in these other arrangements, subject to limited exceptions. The purpose of these therefore was to stop Children being placed in, for example, in regulated independent in some independent settings, which some were not set up to be able to meet the specific needs of Children under 16 where those Children could be vulnerable often with complex needs. So the intention really behind this was to make sure that Children were not being placed in unsuitable placements in those circumstances. But then if that was the only placement that was identified. And as long as it was one which uh did meet uh the child's welfare needs. And by not uh allowing and authorizing this child would otherwise suffer significant harm. Then as, as, as this Thames side case has decided the judge could endorse circumstances invoke the inherent jurisdiction. But by doing so, by doing so, um the court did say that the inherent jurisdiction is available in those circumstances despite the fact that the person may be prosecuted for and convicted of an offense under the case Standards Act. So the fact that the judge was going to be making this order doesn't give immunity from prosecution. So in particular, the order of the court doesn't grant any immunity from the offense in that regard. Um Because this jurisdiction in our jurisdiction is there to protect Children. It's not to decide on the issues of criminal liability. So even if they authorized the child to be placed in one of these unregulated placements and said the child was 15 years of age and a local authority went ahead and placed the child in that unit. It doesn't prevent host from really bringing prosecution, for example, in those circumstances under the, the Care Standards Act, because the court said it's the local authority that is prohibited, not the court uh under these amended regulations. And therefore on that basis, uh it uh could be authorized if needs be. And as I mentioned earlier, the Supreme Court had said that by allowing this authorization, it doesn't mean that you are required to place a charge in that secure placement. It. So in that not order placement, it uh allows the uh authorization but it doesn't compel. And then how does the court then decide when it is necessary to do so as referred to in VT and his lordship did say that the, the test of necessity is one way the court would need to be satisfied that uh in this context, the test of necessity is such that the court needs to be satisfied. Uh That um really by making the child subject to a door order in these circumstances, you're effectively acting in their best interests and therefore using a regime which is then going to be used to prevent them from being subjected to significant harm. So it's got to be used in those very limited circumstances in that regard. OK. So that's the thinking behind that, right? So that brings me then to the end of this session. So you can see we've covered a fair bit looking at some of the further developments in the area, particularly of deprivation of liberty. So what I'm gonna be doing then in the third and final session is that we'll be looking at uh some of the further developments in this area. We'll have a look at some of the more recent case law authorities on the extent of restrictions. We'll have a look at some of the changes in terms of the guidance applications to through the Doles list to do list to do circumstances really just to bring you up to speed with where we currently are in so far as the position with these applications. And once again to see how the law has developed, been developing, given the acute shortage of appropriate placements. So thanks very much indeed for listening and I'll speak to you next time. Thanks very much. Bye for now.
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