Legal outcomes of cases at the national deprivation of liberty court

New analysis of deprivation of liberty orders confirms many children are facing long and severe restrictions in unregistered placements far from home.

New analysis of the legal outcomes of deprivation of liberty applications in England and Wales has exposed 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 research, carried out by 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.

Nuffield FJO’s study is the first national overview of the outcome of DoL applications. It 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 focused on 113 children – a subsection of a larger sample of 208 children included in previous Nuffield FJO research on the needs of children subject to 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 (68.3%) were still subject to an order on 31st December 2022.

The restrictions authorised by the court 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 (69.4%) of the 104 cases. Over a six-month period, only a minority of children (seven, 9.2%) experienced a relaxation to deprivations of their liberty.

While it didn’t appear 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.

In a small number of cases, the court refused to authorise some of the restrictions – usually related to the use of restraint or limits placed on the child’s access to the community.

In over half of the cases (53.8%), 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.

A significant majority of 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, indicating 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).

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.

The research also highlights that children have limited opportunities to formally participate and have their voices heard in DoL proceedings. Article 12 of the UN Convention on the Rights of the Child (UNCRC) states that children have the right to express their views in all matters affecting them, and to have their views considered and taken seriously. Yet just 10 out of 104 children attended at least one hearing in their case.

Five spoke to the judge directly before the hearing and six wrote to the judge to share their views. Furthermore, in 15% of cases, a children’s Cafcass guardian had not been appointed for the child at the first hearing. Five children were separately represented (where the child separates from the guardian and instructs their own solicitor).

Furthermore, despite DoL orders having a severe impact on family life, most parents or carers did not have legal representation; parents and/or carers were legally represented (for at least one hearing) in just 12 cases (11.5%).

Lisa Harker, director at Nuffield FJO, said:

“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.”

Harker also added that the support offered to children and their parents during court proceedings also “needs to be improved”. She continued:

“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.”

The research report on legal outcomes of cases at the DoL court can be downloaded here. Nuffield FJO’s data trends briefing for applications to the court in May 2023 can be found here.