Deprivation of liberty of a child "inappropriate, demeaning and…brutal": best interests, Articles 3 and 5 ECHR: Wigan Metropolitan Borough Council v W and others [2021] EWHC 1982 (Fam)

Y (age 12) was removed from his father's care and placed under an Emergency Protection Order. While in a residential placement, he self-harmed, and was transported to hospital for emergency treatment. While in hospital, Y's behaviour escalated so as to require physical and chemical restraint to ensure his safety. He was not able to return to the residential placement and was on a general hospital paediatric ward where staff were not trained or qualified either in mental health provision or restraint techniques.

A Mental Health Act 1983 assessment resulted in a decision that Y did not meet the criteria for detention under that Act.

By a series of short term orders, deprivation of liberty, including the use of physical and chemical restraint was authorized before the matter came before MacDonald J.

By that point, Y's situation in hospital was such that he had no privacy or socialization as these were not consistent with his safety.  The evidence on behalf of the hospital was that Y's presence was disruptive to the functioning of the ward and the care of other children there, some of whom had been moved to other hospitals, with procedures cancelled for others and areas of the ward closed.

The Local Authority was attempting to identify a secure or residential placement for Y, and also considering placing him with his father (which was contrary to the Y's wishes). An unregulated bespoke arrangement was also being considered. However at the date of hearing, no alternative provision was available. 

The Court held that it was not in the best interests of a 12 year old looked after child to be detained on a hospital ward in circumstances where there was no clinical need for him to be in hospital and his challenging behaviour required a high level of physical and chemical restraint, and infringement of his privacy, to ensure safety. The sole justification advanced by the Local Authority for the child remaining there was the lack of an alternative suitable therapeutic or residential placement. The Court declined to authorize the deprivation of liberty as being in the child's best interests and considered whether the child's circumstances breached art.3 ECHR. This is one in a series of cases where the Courts have expressed dismay at the paucity of suitable provision for children who pose risk of harm to themselves and others. 

The Court held that there were no positives capable of being identified in the arrangements for Y on the hospital ward [58]. In light of that, it would not be appropriate and indeed would be "obscene" to use the inherent jurisdiction powers of the Court, which requires the child's welfare and best interests to be the paramount consideration, to authorize such an arrangement [59]. In terms of article 5 ECHR the arrangement similarly could not be authorized as being in Y's best interests.

In terms of article 3 ECHR, it was held not to be necessary for the Court to determine whether Y's situation amounted to inhuman or degrading treatment, because of the finding in relation to article 5. However, the implication is that the arrangement verged on a breach of article 3 [60].

Wider structural issues

That was sufficient to dispose of the application, however the Court went on to lament the failure of State provision for children in the position of Y, noting that the provisions of the ECHR and the UN Convention on the Rights of the Child and the case law arising out of those provisions highlight the positive obligations on the State to make proper provision for the physical and psychological recovery and social reintegration of children who have suffered neglect, exploitation, or abuse [71]. In this case, as in previous decisions, the Court was critical of the State's failure to make such provision, and the judgment is, as has been the case with previous judgments, directed to be sent to relevant Government departments and to the Children's Commissioner.

Comment

In a series of cases including Lancashire CC v G [2020] EWHC 2828 (Fam) and Tameside MBC v L [2021] EWHC 1814 (Fam) the High Court has expressed deep concern about the lack of suitable specialist accommodation for children presenting risk of harm to themselves and others, in the context of the Court being requested to authorize deprivation of liberty in residential placements which are less than ideal.

In this case, the Court was unable to find that it was in the child's best interests to remain in hospital, and declined to authorize for the purposes of art.5 ECHR, on the basis that the hospital setting, notwithstanding the dedication of staff, was so unsuitable as to be incapable of being in the child's best interests. The judgment is clear that all professionals have done their best for Y, against a backdrop of scarcity of suitable provision.

This case establishes the boundaries of best interests deprivation of liberty authorization, the mere fact of there being nowhere else for the child to go being insufficient for an unsuitable placement to be regarded as in the child's best interests.

The practical implication for local authorities is that they "simply must" find an alternative placement. In the absence of secure or suitable residential placements, compliance is likely to involve bespoke solutions whereby accommodation and care provision are sourced by the local authority, often unregulated.

In Re G (Young Person: Threat to Life: Unavailability of Secure Placement), in a judgment handed down on 22 July 2021, Cobb J. reiterated the highly unsatisfactory situation in relation to secure accommodation placements, in a case concerning a child against whom serious and credible threats to life had been made, but who continued to reside in his family home because of a lack of secure accommodation placements. In that case, the Court had requested attendance on behalf of the Secretary of State for Education and the Children's Commissioner. It is clear that there is deep unease about the lack of suitable provision and the invidious position of the Court when requested to authorize deprivation of liberty in such circumstances.

Parishil Patel QC and Siân Davies appeared for the Wrightington, Wigan and Leigh Teaching Hospitals NHS Foundation Trust.