Children subject to DoL orders often placed in unregistered settings far from home

New analysis of Deprivation of Liberty (DoL) orders confirms many children are facing long and severe restrictions in unregistered placements far from home.

The analysis of legal outcomes in DoL applications in England and Wales finds that it is the ‘norm’ for children involved in these cases to face ‘severe’ restrictions, typically for ‘significant’ periods of time, and to often be placed in unregistered settings far from home – confirming longstanding concerns about children’s experiences.

The Nuffield Family Justice Observatory (Nuffield FJO) analysed applications received during the first two months of the national deprivation of liberty (DoL) court pilot (July and August 2022), focusing on the legal orders subsequently made, with cases tracked for up to 31 December 2022.

The study focused on 113 children, and analysed whether orders applied for are granted and how long for, the nature of the restrictions authorised, where children are placed, and children’s and parent/carers’ participation in proceedings. The study is the first national overview of the outcome of DoL applications.

In 104 of the 113 cases (92%), applications for DoL orders were granted. While these orders are intended to be a temporary measure, most children (68%) were still subject to an order on 31 December 2022.

In over half of the cases (54%), children were placed in at least one unregistered setting, ranging from semi-independent accommodation, Care Quality Commission-registered accommodation, hospital wards, and temporary rented accommodation, including hotels or caravans. When children were placed in unregistered placements, researchers said there were ‘considerable delays’ in providers applying for, or being granted, registration.

More than seven in ten children (over 70%) where the deprivation of liberty was sought primarily to manage risks related to criminal exploitation, emotional difficulties, behaviours that were a risk to others, and self-harm were placed in at least one unregistered setting, which researchers said indicated a lack of suitable regulated provision for children experiencing such risks. Children subject to a DoL order primarily due to a learning and/or physical disability were the least likely to be placed in unregistered accommodation.

The placements were also far away from where children were living – on average 56.3 miles away from their home. Six children were placed in Scotland (at an average of 254.4 miles from the child’s home area).

Researchers said the restrictions authorised by the court also involved severe constraints that remained in place for significant periods of time. Each child was subject to an average of six different types of restriction on their liberty, including, in almost all cases (99%), constant supervision, usually by multiple adults. The use of restraint was permitted in over two-thirds (69%) of the 104 cases. Over a six-month period, less than one in ten children (9%) experienced a relaxation to deprivations of their liberty.

Researchers expressed concern that the restrictions applied for were routinely questioned or scrutinised. In some cases, the court ordered the local authority to file an ‘exit plan’, with clear information about how and when the restrictions would be reduced, to share with the child – which researchers recommended become a requirement in future proceedings.

The research findings also emphasize the limited opportunities for children to actively participate and have their voices acknowledged within proceedings. According to Article 12 of the UN Convention on the Rights of the Child (UNCRC), children have the right to express their views regarding matters that affect them and have those opinions taken into consideration. Surprisingly, only 10 out of 104 children attended a single hearing related to their case. Five spoke with the judge before the hearing, while six conveyed their views through written letters to the judge. Moreover, in 15% of the cases, a children's Cafcass guardian had not been appointed for the child at the time of the first hearing. Researchers said this primarily occurred due to last-minute applications or delays in making children party to proceedings. In five instances, the children were separately represented (where the child separates from the guardian and instructs their own solicitor).

Information about children’s access to education and therapeutic services was limited in the orders, and concerns about this were often raised by the court, children’s guardians and parents or carers. In several cases, the court directed the local authority to provide a more detailed care plan.

Lisa Harker, director at Nuffield FJO, expressed concern about the findings of the report and said that the support offered to children and their parents during court proceedings also needs to be improved.

“The findings of this study confirm that concerns about deprivation of liberty orders – including that many highly vulnerable children are being placed far away from home in unsuitable, unregistered accommodation, with their movements and contact with friends and family being severely restricted – are the norm and not an exception.

“We saw no evidence that these are temporary fixes; children are living in circumstances that are likely to exacerbate their trauma because there is nowhere else for them to go.”

Since July last year, Nuffield FJO has also been regularly collecting, analysing and publishing data from the court, estimating that approximately 1,300 applications will have been made over a 12-month period.

“The data from the national DoL court we have been regularly collecting and publishing has been crucial in demonstrating the scale of applications being made – but deeper analysis has allowed us to substantiate anecdotal evidence about children’s experiences. Action is desperately needed to develop local placements with care that can meet children’s needs and ensure meaningful change to their circumstances and health and wellbeing,” Harker added.

“It is essential that there continues to be monitoring of this situation. We are pleased that HMCTS has confirmed it will start to collect and publish data about deprivation of liberty cases from July and we are committed to supporting this process.”