Children's Wellbeing and Schools Bill

Written evidence submitted by Nuffield Family Justice Observatory (CWSB187)

Children’s Wellbeing and Schools Bill

Written Evidence to the Public Bill Committee

About Nuffield Family Justice Observatory

Nuffield Family Justice Observatory aims to support the best possible decisions for children by improving the use of data and research evidence in the family justice system in England and Wales. We find and fill the gaps in our understanding of the family justice system, highlight the areas where change will have the biggest impact, and foster collaboration to make that change happen. We are an independent organisation funded and hosted by the Nuffield Foundation, an independent charitable trust with a mission to advance social well-being.

Regarding: Clause 10

Under Clause 10, the Bill seeks to amend section 25 of the Children Act 1989 to provide a statutory framework for the authorisation the deprivation of liberty of children in accommodation other than a secure children’s home, accommodation that provides ‘care and treatment’ for children with complex needs.

The effect of this legislative change would be to provide an alternative statutory route to authorise the deprivation of liberty of a child other than under the inherent jurisdiction of the High Court, bringing these cases under the framework of section 25 of the 1989 Children Act.

Evidence from Nuffield Family Justice Observatory

Our written evidence is informed by Nuffield Family Justice Observatory’s extensive research on children on deprivation of liberty orders.

Nuffield Family Justice Observatory analysed all applications to the National Deprivation of Liberty Court for a 12 month period in order to understand the number, characteristics and experiences of children subject to deprivation of liberty orders. An overview of our research findings is provided here.

Our research has led us to conclude that there is a need for clear criteria for:

1. The grounds to deprive a child of their liberty

Our research reveals marked differences between regions in the numbers of applications for deprivation of liberty orders (see page 10 of this report). There are multiple possible explanations for this variation including differences in the number of children in care, the needs of children and families and the availability of residential or other specialist provision. However, the regional variation also reflects different working practices and cultures. Under section 25 the court has to be satisfied that the specific grounds for making the order exist at the time of the court hearing.  Case law has established that welfare of child should be considered, as should the proportionality of confinement because such placements are potentially in breach of both Article 5 and 8 of the Human Rights Act.  The proliferation in applications for Deprivation of Liberty Orders under the inherent jurisdiction of the High Court – and the regional variations – suggest that there needs to be a clearer definition of the circumstances in which deprivation of a child’s liberty is justified.

2. Additional safeguard to test the grounds for restricting the liberty of young children

Our research (Figure 4, page 13) found that 9.3% of deprivation of liberty orders under the inherent jurisdiction of the High Court were for children under the age of 13. Under the Children (Secure Accommodation) Regulations 1991 ( Reg 4) , authorisation of the Secretary of State for Education is required for the placement of under 13-year-olds in secure children’s homes. This requirement should be extended to all under 13-year-olds who are deprived of their liberty.

3. The nature of the restrictions permitted

Our research (see Table 2, page 14) found that deprivation of liberty orders made under the inherent jurisdiction of the High Court permitted an average of 6 different types of restriction per child, including in almost all cases constant supervision, often by more than one adult (99.0% of cases). The use of restraint was permitted in over two-thirds of cases (69.4%). Under section 25 less detail is given on the specific nature of the restrictions on a child’s liberty as the assumption is that a secure children’s home has been set up with the purpose of restricting liberty. A deprivation of liberty order under the inherent jurisdiction of the High Court is a permissive order, so restrictions applied for do not have to be implemented unless they are necessary. The legislation would need to clarify that depriving a child of their liberty in alternative accommodation under s.25 would not necessitate the highest level of restrictions in all cases.

4. The quality of the care and treatment provided in such accommodation

As drafted the bill does not define what kind of accommodation is appropriate to be used to deprive a child of their liberty, nor the nature of the ‘care and treatment’ that should be provided. Nuffield Family Justice Observatory has developed some Principles of Care with the help of academics and clinicians who work with children with complex needs informed by the views of young people who have been subject to deprivation of liberty orders. These are a good starting point for considering what ‘care and treatment’ might look like. At present secure accommodation does not meet these Principles of Care. Secure children’s homes do not provide holistic assessment, care and treatment and the care is not provided by highly experienced multi-disciplinary teams, for example. The bill is an opportunity to address these significant limitations and to set out a clear vision for the quality of care and treatment for children with such significant vulnerabilities.

5. How long restrictions to liberty are permitted

There is a need to ensure that children are not subject to restrictions to the liberty for longer than is absolutely necessary. Our research (Figure 4, page 11) found that there was significant variation in the length of time that individual orders were made for, ranging from 1 day to 12 months, but that the majority (68.3%) of children deprived of their liberty under the inherent jurisdiction of the High Court were still subject to a deprivation of liberty order almost six months later. We know from practice evidence that providers are reticent to remove restrictions when a deprivation of liberty order is in place, even when they are legally permitted to do so (as it is a permissive order). Under section 25 a child can be placed in child in secure accommodation for a maximum of 3 months initially, with subsequent orders permitting up to 6 months and no limit on number of subsequent orders that can be made.  The bill needs to clarify the position on the length of time that is permissible to deprive a child of their liberty. Given the severity of the restrictions, we do not believe that it is justified for the majority of children on deprivation of liberty orders to have their liberty restricted for six months or more.

6. Mandatory and timely review points

At present there is no mechanism to determine whether the arrangements agreed under a deprivation of liberty order are adhered to. The Bill needs to define how regularly deprivation of liberty restrictions are reviewed and by whom. The reviewing mechanisms should be set out on the face of the order . Secure Accommodation regulations require the local authority to appoint three people, one of whom must be independent of the local authority, to review the placement within one month and thereafter every three months. The review is expected to consider whether the criteria to restrict freedoms continue to exist, whether the placement continues to be necessary and whether other accommodation would be appropriate.  Regulations contain a range of duties for the reviewers - particularly the independent reviewer - including ascertaining wishes and feelings of child, parents, independent visitor and managers of secure children’s home. Similar reviewing arrangements should be extended to all children on deprivation of liberty orders. However, since we are not aware of any evidence as to how well these reviewing arrangements are currently working in relation to children in secure accommodation, it will also be important to set out how reviewers will be held to account.

7. Legal aid entitlements

In court proceedings concerning applications for a deprivation of liberty order, parents will automatically be made parties to the proceedings but they do not have the same rights to legal aid that they have in care proceedings. A means and merits test will be applied if they seek legal aid for legal representation. Our research (page 25) found that the vast majority (88.5%) of parents and/or carers were not legally represented at any hearing in a deprivation of liberty order case. The government has indicated that with respect to the changes to section 25 it intends to mirror the legal aid arrangements available to parents in Secure Accommodation Order cases and we hope the government will do this as a matter of urgency.

8. Distance from home

Our research (page 20) showed that the average distance that children were placed away from home while subject to a deprivation of liberty order was 56.3 miles. The maximum distance was over 390 miles. There bill is an opportunity to make clear that accommodation so far from home is not considered to be suitable.

9. Data collection

National data about children who are subject to deprivation of liberty orders is limited. We do not have any data to show the short, medium and long-term outcomes for children who have been subject to such restrictions, for example. We also lack basic information about their personal characteristics. The application form for a deprivation of liberty order does not require information on a child’s ethnicity, for example. Nuffield FJO’s analysis of applications made in June and August 2022, data on ethnicity was missing in almost half of cases (45.7%). Our analysis of the available data suggested that some groups of children may be overrepresented among children subject to deprivation of liberty orders, in particular children from Mixed and Black ethnic groups. If this is the case, it would raise important questions for local authorities and health trusts to consider. However, we need more reliable data in determine whether this finding is an accurate reflection of total population on deprivation of liberty orders. The bill is an opportunity to legislate for better data collection and reporting in relation to children in these circumstances.

For further details: Lisa Harker, Director, Nuffield Family Justice Observatory lharker@nuffieldfoundation.org

January 2025