Arianna Kelly and Parishil Patel QC act for a hospital trust in complex proceedings relating to a deprivation of liberty of a child in hospital and community settings

Following on the recent cases of Re G (Young Person: Threat to Life: Unavailability of Secure Placement) [2021] EWHC 2066 (Fam) and Wigan Metropolitan Borough Council v W and others [2021] EWHC 1982 (Fam), Mrs Justice Knowles considered the position of accommodating 15-year-old children in unregulated accommodation in W (Young Person: Unavailability of Suitable Placement) [2021] EWHC 2345 (Fam).

The case related to a 15-year-old girl, W, who was in psychological and emotional distress and was engaging in significant self-harming behaviour. She was deprived of her liberty in hospital after she was admitted following a serious attempt to harm herself, and remained detained after she was medically fit for discharge because her family did not feel able to care for her at home. Remaining in hospital was considered by all professionals to be detrimental to her, as was being sent to 'secure accommodation' or being admitted as a psychiatric inpatient, as she did not have any treatable mental illness.

W remained in hospital as the local authority searched hundreds of children's homes without finding one which was able to help her. The local authority finally, and reluctantly, proposed a bespoke placement in short-term accommodation, with a provider which was not registered with Ofsted.

The court considered the challenges posed due to the lack of suitable placements for W:

  1. Whatever the difficulties with registration are, the local authority has no other option for W. There is no secure accommodation provision available and, even if such accommodation were available, the professional consensus is that it is not in W's best interests to be so placed. The hospital evidence is that W is being harmed by remaining in hospital notwithstanding the difficulty the hospital experience by reason of her occupancy of an adult surgical bed. I accept the urgent need for W to move from the hospital to a placement created with her particular needs in mind. It is unfortunate that the temporary accommodation in which she will live is only available until 6 September 2021 and that W will have to move from that date to other accommodation which the local authority accept it needs to find as a matter of considerable urgency. I am also satisfied that the restrictions on W's liberty are both necessary and proportionate to meet her welfare needs.
  2. That is, regrettably, not the end of the matter. This placement will not only be potentially illegal but will be unlawful with effect from 9 September 2021 because of the amendments contained within the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 (SI 2021/161).…
The aim of the amendment is to ensure that looked after children under the age of 16 are only placed in children's homes or foster care. Whilst there are obvious concerns about placing children in unregistered accommodation, it will be immediately apparent that finding or creating a bespoke placement for a young person who urgently needs care will be considerably harder following 9 September 2021.
  1. The local authority entirely accepts the aims and appropriateness of the new regulatory framework, given the widely publicised difficulties caused by the use of unregistered children's homes. However, whilst the government has increased national funding for the expansion of the network of children's homes, there is a paucity of provision at this time. W is a young person who will not benefit from such an institutional setting and who cannot be placed in the alternative of foster care given the extent of her difficulties. She falls between two stools…
I express no view as to whether the option identified at (b) above would be either practical or in accordance with the relevant regulations. What is the local authority to do if there is no secure accommodation available and no other appropriately regulated type of placement which might meet W's needs? In Re T (see above), Lady Black - giving the lead judgment - stated that "if the local authority cannot apply for an order under section 25 because there is no section 25 compliant secure accommodation available, I would accept that the inherent jurisdiction can, and will have to be, used to fill that gap, without clashing impermissibly with the statutory scheme" (paragraph 141). Whether the inherent jurisdiction can fill the placement gap in W's case once the 2021 Amendment Regulations come into force will be a matter for more detailed argument and consideration at the next hearing before me.

Arianna Kelly and Parishil Patel QCacted on behalf of the hospital trust.

You can read the full judgment here.