Study exposes “extreme vulnerability” of children subject to Deprivation of Liberty applications

New analysis of court applications that seek to deprive children of their liberty in England and Wales has exposed the extreme vulnerability of the children involved.

The research was carried out by Nuffield Family Justice Observatory (Nuffield FJO) and involved studying applications made to the family division of the high court to deprive children of their liberty where there were concerns about their welfare. Nuffield FJO says the analysis now raises further questions about the severe shortage of appropriate provision to meet their needs.

An application can be made to deprive a child of their liberty via the ‘inherent jurisdiction’ of the high court if a local authority has concerns about risks to their safety, or that of others, and no other suitable place – such as in a secure children’s home, or provision under the Mental Health Act – is available. Intended as a ‘last resort’ measure, in England there was a 462% increase in Deprivation of Liberty (DoL) applications under the inherent jurisdiction between 2017/18 and 2020/21.

In July 2022, a national DoL court was launched at the Royal Courts of Justice as a 12-month pilot, to deal with all new applications to deprive children of their liberty under the inherent jurisdiction. Nuffield FJO analysed applications received in the first two months (comprising 208 children) to provide a better understanding of the children involved, and the type of care and provision they need.

Most had experienced significant adversities and trauma throughout their childhoods, including physical or sexual abuse and neglect, rejection and bereavement. In almost all cases (95%), there were multiple concerns that led to the DoL application being issued. These included concerns about the child’s behaviour that were considered a risk to others, for example because of physical or verbal aggression (69%); mental health or emotional difficulties (59%); and self-harm (52%). Some children had physical or learning disabilities (34%), and some were at risk of criminal or sexual exploitation (33%).

By the time the DoL application was made, restricting the child’s liberty was thought to be the only way to manage the risks they were facing – yet the vast majority of children were already well known to children’s services, having had long-term involvement with children’s social care. Only 10 children had recently come to the attention of the local authority, and only a small number of children were living at home with their parents.

Many had faced significant instability in their living arrangements. Over half (55%) had experienced the breakdown of multiple placements, including moving between different foster care and residential placements, as well as between family members and in and out of care. Some children had moved as many as 10 times in the period leading up to the DoL application. In some cases, adoption or special guardianship arrangements had broken down due to the adoptive parents or carers being unable to manage the child’s behaviour.

In addition, the study exposes the national shortage of suitable placements available to meet children’s complex needs. In just under half of applications (46%), children were going to be placed in unregistered settings – such as semi-independent accommodation, rented flats or holiday lets. Nuffield FJO says that this would be illegal due to the recent ban on the use of unregulated settings for all children under 16, and children under 18 who are receiving care.

Despite the prevalence of complex emotional difficulties and self-harming behaviours, very few children met the criteria for in-patient mental health treatment.

Nuffield FJO identified three broadly distinct groups of children for whom the DoL application was being sought for different reasons, which may help guide future service development: children with learning and physical disabilities needing support/supervision; children who had multiple, complex needs, which were often recognised to be a response to complex and ongoing trauma; and children experiencing or at risk of external or extrafamilial risk factors such as sexual or criminal exploitation.

The types of restrictions recorded in the applications were multiple and involved severe constraints. They included constant daytime supervision (ranging from 1:1 to 4:1 adult to child supervision) both within the placement and out in the community; locks on windows and doors; supervised and/or restricted use of the internet, mobile phones and landlines (many were not allowed to have their mobile phones or any electronic devices); not being allowed into kitchens or only under supervision; checks throughout the night (for some children this meant leaving bedroom doors open); not being allowed to have money, or access to money being strictly controlled; and supervised contact with family and friends, both in person and contact by phone or electronically. The use of physical restraint (where absolutely necessary) was mentioned in 91 cases.

“The level of trauma and adversity that these children have experienced is deeply distressing,” Lisa Harker, director at Nuffield FJO, said. “They have often been badly let down by the adults around them. It is obvious to all that they need intensive, stable, consistent care provided by highly experienced professionals. Yet this study confirms that – due to a dire national shortage of provision – this ‘last resort’ measure is being used to deprive children of their liberty to try to keep them safe, in the absence of the intensive care they so clearly need.

“Improving provision for this group of children is an urgent necessity; it is not only about building new children’s homes for the future, it is about urgently meeting the needs of children today. It will require a nationwide strategy, with significant commitment at a local and national level, led by national government. We know that a wide range of professionals, including senior members of the judiciary, have been actively and consistently calling for action to address the gross lack of suitable provision.”

Nuffield FJO is regularly collecting, analysing and publishing data from the national DoL court. The analysis has revealed the number of applications to use this ‘last resort’ measure now significantly outnumbers those made under the statutory scheme to place children in secure children’s homes. According to data from the Ministry of Justice, between July and September 2022, 46 secure accommodation order applications were made to the family courts – in the same period, there were 348 applications for DoL orders.

In the first six months of the national DoL court (July-December 2022), 657 children were the subject of applications. The number of applications to the national DoL court has remained fairly consistent over this period, with around 110 applications made per month. Should this pattern continue throughout the pilot, Nuffield FJO expects there to be around 1,300 applications made from July 4 2022 to June 30 2023.