NFJO finds 462% increase in child deprivation of liberty applications

Research conducted by the Nuffield Family Justice Observatory (NFJO) reveals that the number of applications to the High Court to deprive children of their liberty in unregulated settings has increased by 462% over three years.

Following a request to Cafcass, NFJO have been able to reveal the startling rise in the use of this special power to deprive children of liberty when a placement cannot be found for them.

The data is published as part of NFJO’s new evidence review what do we know about children deprived of their liberty?, alongside two further papers which provide insight into “one of the most invisible areas of the family justice system”.

Figures show that in 2020, there were 420 referrals vs 209 placements, which equates to just one in two children referred for a place in a secure children’s home for welfare reasons being found one.

Additionally, in the three years prior to 2020/21 the number of applications made to the High Court to deprive children of their liberty under the inherent jurisdiction increased from 108 to 579 per year. In 2020/21 these applications outnumbered applications under s.25 of the Children Act 1989 (for places in secure children’s homes) for the first time.

NFJO commented on the findings:

“Unlike children held in other settings, children deprived of their liberty under the inherent jurisdiction don’t appear in published administrative data or records. This is a major cause for concern as there is no public record of where they are placed, what restrictions are placed on their liberty, or their outcomes.”

The evidence review also highlighted that there were marked similarities in the early life experiences and needs of children deprived of their liberty for welfare and youth justice reasons. The NFJO report stated:

“Children entering both welfare and youth justice secure settings are likely to have experienced trauma and disadvantage from early childhood, and these experiences are likely to lead to difficulties and risks arising from mental health problems, such as challenging and offending behaviours, substance misuse, self-harm, educational needs, and risk of sexual and criminal exploitation.”

The report also shows that children from racialised communities are overrepresented across all types of secure setting. This is most stark in the youth justice secure estate, where children of Black, Asian and Mixed ethnic backgrounds make up just over half (51%) of the total population and disproportionality is increasing.

Children from Black and Mixed backgrounds are also overrepresented among children referred to secure children’s homes for welfare reasons and those detained under the Mental Health Act, the report found. There is also some evidence that children from racialised groups receive disproportionate and unequal treatment within secure settings, but says NFJO, there is a need for further research to better understand the drivers of this disproportionality.

It is not yet clear how the COVID-19 pandemic has impacted the number of children placed in secure settings, with NFJO calling for further research in this area. During this time many secure children’s homes have been operating at reduced capacity, which has placed further strain on the system.

Lisa Harker, director of Nuffield Family Justice Observatory, commented on the report and findings:

“Something is clearly not working. The use of the inherent jurisdiction of the High Court is intended as a last resort, yet last year hundreds of children were deprived of their liberty in this way, often ending up in caravans or holiday lets without the properly regulated care they so desperately need.

These are the most vulnerable children in our society, but at this point they simply disappear from view, with no data recording what happens to them.

We need an urgent rethink about how we improve the lives of the most vulnerable children in our society, and to be clear about the purpose of depriving young people of their liberty.”