New analysis of deprivation of liberty (DoL) applications concerning children in England and Wales has revealed the “extreme vulnerability” of those involved.
Nuffield Family Justice Observatory (Nuffield FJO) studied DoL applications where there were concerns about their welfare.
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.
Nuffield FJO said that there was a 462% increase in DoL applications – which are intended as a “last resort” – under the inherent jurisdiction between 2017/18 and 2020/21.
“Striking” vulnerability of children
In analysing 208 applications received in the first two months of the DoL court pilot at the Royal Courts of Justice, the Observatory said the vulnerability of the children is “striking”. Most had experienced significant adversities and trauma throughout their childhoods, including physical or sexual abuse and neglect, rejection and bereavement.
In over 95% of cases, 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 (69.2%), mental health or emotional difficulties (59.1%), and self-harm (52.4%). Some children had physical or learning disabilities (33.7%), and some were at risk of criminal or sexual exploitation (33.2%).
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 most children were already known to children’s services. Only 10 of 208 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.
What’s more, half (55.3 %) had experienced the breakdown of multiple placements for their living arrangement. Some children had moved as many as 10 times in the period leading up to the DoL application.
The study also highlighted the national shortage of suitable placements available to meet children’s complex needs. In just under half of applications (45.6 %), children were going to be placed in unregistered settings – including semi-independent accommodation, rented flats, or holiday lets.
Who are applications made for, and why?
Nuffield FJO identified three broadly distinct groups of children for whom the DoL application was being sought: 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 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; not being allowed into kitchens or only under supervision; checks throughout the night; 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,” said Lisa Harker, director at Nuffield FJO:
“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.”