Baljinder Bath, barrister at 4PB, argues that Deprivation of Liberty laws are not fit for purpose in ensuring the safety and wellbeing of vulnerable children.
Each time we reach to turn on the news, there seems to be yet more doom and gloom about the cost-of-living crisis, and parents struggling to make ends meet.
For those of us that practice in public children law, the impact on children is profound. With the added stress placed on parents there are real issues of domestic abuse, mental health, non-accidental injuries and neglect. The Family Court is inundated with the volume of care cases and in the period January to March 2023 there were 3,945 new applications with the average case now taking 44 weeks. Often we are faced with cases where the parents were children in care themselves.
For those children that need to be removed from their parents the options are a family placement if viable, foster care or particularly for older children a residential placement. It is not uncommon to get to Court and find that the local authority has simply been unable to find a foster placement, let alone a foster placement that can keep a sibling group together. Social workers are doing their best, faced with a lack of resources and impossible workloads.
The situation is particularly stark for teenagers who may have complex behaviour or mental health needs or be engaged in criminal activity, child sexual exploitation or county lines, requiring restrictions on their liberty.
In Re X (Secure Accommodation: Lack of Provision) [2023] EWHC 129 (Fam), President of the Family Division and Head of Family Justice Sir Andrew McFarlane once again drew public attention to the very substantial deficit that exists nationally in the provision of facilities for the secure accommodation of children, and directed the Secretary of State for Education to attend. He said in terms, ‘It is not the role of the courts to provide additional accommodation; all the court can do is to call the problem out and to shout as loud as it can in the hope that those in Parliament, Government and the wider media will take the issue up.'
In that case the secretary of state filed a skeleton argument stating that:
• The Government will create a total of 350 open residential placements nationally by 2025.
• The secretary of state is contributing to ongoing work led by NHS England focused on children and young people with complex needs and emotional and behavioural issues, with a view to making recommendations in the future.
• The Department of Education will undertake a workforce census in 2023-2024, with in-depth case studies on recruitment, retention, qualifications and training, to support the sector with retention of staff.
In June 2023 the Nuffield Family Justice Observatory published Legal outcomes of cases at the National Deprivation of Liberty Court. Their report provides that ‘children subject to DoL [Deprivation of Liberty] applications are likely to be placed in unregistered placements, and to be living far from home in often unstable settings. This highlights the urgent need to develop more suitable, local placements for children with complex needs. This should include joint input from children’s social care, mental health services and schools. Given the volume of applications to the national DoL court, this will require significant commitment at local and national level, including national government.’
On 4 July 2023 Mark Kerr, of the Children's Homes Association, warned the Commons Education Committee of an urgent need for more resources and that the crisis is only going to deteriorate further. On 7 July 2023 the BBC reported that in response ‘a Department for Education spokesperson said it was the responsibility of local authorities to provide safe placements.’ Like Sir Andrew Macfarlane in Re X, I take the view that this approach shows a level of complacency about the dilemma local authorities find themselves in, and borders on cynicism.
The bottom line is as a society we need to stop passing the buck about finances and prioritise the needs of vulnerable children if we are ever going to break the cycle of care.
Baljinder Bath is barrister at 4PB
