Call for ‘multi-agency co-ordination’ as child Deprivation of Justice applications reaches all-time high

Data published from the The Ministry of Justice(MoJ) has shown that 1,368 children were subject to deprivation of liberty(DoL)applications under the inherent jurisdiction last year, and that figure has increased substantially over the last five years. 

A total of 289 children were recorded as being subject to deprivation of liberty applications between October and December 2023, according to MoJ findings and the number of applications was five times that of secure accommodation applications in the UK.

‘Undiagnosed mental health conditions’ and ‘repeat social care assessments’ have been blamed for the increase in DoJ applications as the NHS and social care sectors experience strain. ‘Short term crisis planning’ has also been suggested as a way to avoid children with complex needs being siloed by bureaucracy.

The agency of parents is limited in DoJ cases due to the lack of Legal Aid available in such circumstances, therefore restricting their involvement.

The Nuffield Family Justice Observatory has researched the data, and claims that ‘vulnerable children are often placed in inappropriate placements with severe restrictions on their daily lives, and without the care they desperately need because there is nowhere else for them to go.’ Those with intersecting and mutually synergistic needs such as developmental disorders paired with an environment of abuse or poverty, are prime candidates for being placed in unchecked environments.

A DoL order makes it lawful for a child to be deprived of their liberty. The court authorises the order and any restrictions are set out clearly in the order. Children of any age, subject to a DoL, generally require high levels of care and supervision. This means they will likely be placed in a children’s home or a care home service. The government has put regulations in place preventing local authorities in England from placing children under 16 in settings where they do not receive ‘care’.

A collective of doctors and professors in the sector have published an in-depth study detailing findings about vulnerable minors who are subject to, or at risk of DoL in the UK. Dr Dickon Bevington, Professor Robbie Duschinsky, Dr Rachel Hiller, Professor Lisa Holmes, Professor Eamon McCrory, Professor Helen Minnis, Dr Alice Simon penned ‘Principles of care for children with complex needs and circumstances’, outlining the numerous ‘failures’ of the justice and care systems, alongside proposed changes to the current structure.

Children who present as neurodivergent, and who have ‘overlapping difficulties’ can have their liberty deprived due to their complex needs, or ‘difficulty in managing aggression in a residential setting’. Abuse, neglect, poverty and racism has also been said to play a key part in children being placed in unregulated settings because ‘there is nowhere else for them to go’.

The Nuffield Family Justice Observatory study explains:

“Children with complex needs and circumstances’ refers to children with multiple, overlapping difficulties that are not being met by the services and systems collectively responsible for their care and safety. This includes the many children who are deprived of their liberty due to concerns about their well-being, and who are placed in unregulated settings because there is nowhere else for them to go. These children have multiple emotional and behavioural needs that are often associated with experiences of early and ongoing childhood adversity -such as abuse and neglect, but also poverty and racism- and complex trauma. There may have been repeated failures by children’s services, mental health services and education services to provide them with effective help. The children’s behaviour may cause significant risk to others which is challenging to manage in residential settings.

“It is often the combined impact of these needs – rather than the impact or ‘severity’ of any individual risk factor – that increases a child’s vulnerability, and that systems struggle
to effectively respond to.”

Currently placements have cause children to be shifted between professionals and the family courts and often do not have a consistent person or group in their day-to-day lives. The study claims children are being ‘trained’ into having ‘temporary attachments’ and that DoL orders cause ‘issues with identity, trust and safeguarding’.

Suggestions that professionals in the legal and care sectors need to ‘actively support the continuation of safe, familiar relationships’ and to work alongside a child’s bespoke needs when a DoJ placement breaks down.

The study said: 

“Professionals need to actively support the continuation of these relationships, especially when a change in a child’s circumstances threatens to disrupt them, for example when a placement breaks down. Professionals should work with children to identify the relationships that are important to them, map them out, and support them to maintain them.

“Every child should have a holistic, multidimensional, high quality assessment of their mental health, social care, education (including neurodevelopmental and learning), and well-being needs. Assessments should be supported by validated assessment tools. Any assessment should be followed by the development of an individualised, comprehensive, multidimensional formulation and plan of the interventions and support required to address the child’s short, medium, and long-term needs. This should include a focus on the child’s educational needs and necessary work to support inclusion in education.

“There is insufficient multi-agency and multidisciplinary coordination, and insufficient understanding across multidisciplinary and multi-professional networks of each other’s roles, explanatory frameworks, agency remits and intervention options.”

Significant historical cases have determined the present framework of DoL cases. One was the Bournewood ruling in 2004. 20 years ago a  UK case came before the European Court of Human Rights. The Court identified that there had been an unlawful deprivation of a young man’s liberty when he was held in a hospital with no legal authority or right to challenge his detention. The young man was not suitable to be held under the Mental Health Act 1983 (MHA) and couldn’t give consent to be there because of the way his autism affected his ability to make decisions.  The court identified a gap in UK law: when someone was not detained under the MHA, there was no legal framework to authorise the deprivation of liberty.  This meant that there was no easily accessible way for the young man or his carers to challenge his detention in hospital.  In response to this ruling, the UK government introduced the Deprivation of Liberty Safeguards (DoLS) to authorise deprivation of liberty in hospitals and care homes.