Celia Kitzinger, 12th August 2021
Note: For another perspective on secure accommodation, see the blog by Anna Rebowska, “Secure units and young people: In search of home to call your own“
“Secure accommodation” is a legal term that refers to a form of accommodation provided for the purpose of restricting liberty under section 25 Children Act 1989. Children can also be remanded or sentenced to detention through youth justice legislation. The accommodation has to be approved as “secure accommodation” by the Secretary of State, and needs to comply with various regulations.
Local authorities place children in secure accommodation when they are at risk of harming themselves or others. Secure accommodation is expected to keep children safe, to restore some stability to their lives, and to assess their needs and identify the supports needed in future. (See this report on “Local authority use of secure placements” (pdf).)
There has been a rapid rise in the numbers of children deprived of their liberty in recent years. The BBC reported on freedom of information responses from 91 of 170 local authorities in England and Wales: the number of deprivation of liberty orders for children and young people went from 43 in 2016-17 to 134 in 2018-19. The vast majority of these will be for children in care.
It has become increasingly apparent that there are simply not enough secure accommodation places available, and that very vulnerable children are being kept waiting in inappropriate settings, or placed in unregulated homes.
The desperate lack of secure accommodation became glaringly apparent in the Court of Protection case (COP 13743601) I observed before Mrs Justice Judd on 2nd July 2021, and again on 16th July 2021.
This was a case in which the judge and all the parties to the case (including the local authority) were doing their utmost to help a vulnerable young person against the backdrop of a nationwide shortage of appropriate provision.
Background
At the first hearing I observed, Mrs Justice Judd said this was “a profoundly worrying case”. An “extremely vulnerable” 17-year-old girl (“N”) – diagnosed with autism, mild learning disability and emotional dysregulation – was being kept inappropriately in an Accident and Emergency bed because there was nowhere else for her to go.
The local authority had planned to apply to court for authorisation of a deprivation of liberty. But this application was problematic at the time of the hearing because “over the past few days, circumstances surrounding N’s residence and care has been changing by the hour”.
At the time of the hearing, it did not seem possible to make an application to deprive N of her liberty because:
- It wasn’t clear whether or not N has capacity to make her own decisions about where she lives and what care she receives: there seems to be some suggestion that she might do, at least sometimes, in which case she is not someone over whom the court has jurisdiction;
- Since it had recently been determined that N does not meet the criteria for detention under Section 2 MHA 1983, she would shortly be discharged from hospital, but since there was no placement (or care package) available for her, it was impossible to know whether or not the arrangements would be the least restrictive option, or whether or not they would be in N’s best interests.
Since June 2019, when N’s mother reported she could no longer care for her, N has been a “looked-after child” (Children Act 1989). For much of that time she has been in secure children’s homes. She has experienced multiple placement breakdowns and is assessed as requiring an extremely restrictive care package including 2:1 care at all times, including through the night, with carers trained to carry out restraint. She’s moved placement many times and until shortly before the hearing on 2nd July 2021 had been living in what was understood to be either her 13th or 14th placement since mid-2019. That placement is now under threat.
“I can tell you I have had myself a number of cases like this, with young people being in an A&E Department of a hospital, simply because there’s nowhere else for them. No doubt social workers are in a parlous position on this, but judges are being asked to authorise this position and it really is very troubling.” (Mrs Justice Judd)
The judge acknowledged that the local authority was making its “very best efforts – focussed efforts over a prolonged period of time” to find N an appropriate placement but that there were real difficulties in doing so.
The current placement had been the outcome of an extensive nationwide search – involving referrals to over 527 placement providers, only two of which indicated an ability to meet N’s needs. The placement now under threat had been literally the only care provider who appeared able to care for N – and they were now on the cusp of serving notice.
The local authority (represented by Lucinda Leeming) described “utter dismay” at the situation they were in. Counsel for N (Katie Scott, acting via the Official Solicitor) described the situation as “most unfortunate”.
THE HEARING ON 2nd July 2021
The Applicant
Counsel for the applicant council described N’s self-harming behaviour, including attempted suicide, and “extremely aggressive behaviour” that includes assaults on care staff and police officers. Her “uncontrollable rage” has led to incidents involving criminal proceedings and the involvement of the youth justice service.
N had been admitted to hospital at the end of June 2021 following “a significant episode of dysregulation” between 25thand 27th June 2021 in her current care home (“F House”). She had been continuously awake and “experiencing mania” for 72 hours, during which she gained access to the roof and threatened to kill herself. She threw boiling water from a kettle over staff caring for her, and thew nail polish remover into the eyes of a carer saying she wanted to blind them. She armed herself with knives and parts from a broken bed and threatened staff. She set fire to a tea towel, saying she wanted to burn the house down.
On 30th June 2021, the police took N to hospital, under s.136 of the Mental Health Act (MHA) 1983 and she was assessed that evening as meeting the criteria for detention under Section 2 MHA 1983. It was decided that she needed a specialist bed, but none was available that day.
The next day, on 1st July 2021, the day before the hearing, N was reassessed and deemed not to meet the criteria for detention. The Approved Mental Health Professional (AMHP) who assessed her said that it was not possible “to elicit” any mental health needs and that N had apparently been “calm” during her time in hospital and that she can be discharged as soon as a bed is available.
There is nowhere to discharge her to, since the care home she was in previously no longer considers that it is able to keep N safe and ensure the safety of others. The local authority feels unable to agree to N returning to “F House”, given that her safety and that of others is in doubt.
So, the local authority is looking for a secure accommodation placement but reports that as of the evening of 1st July 2021, there was a need for 57 secure accommodation placements nationwide, and just 2 placements were available. One had already deemed N to present too high a risk, even for their secure accommodation. The other will be reviewing the profiles of all those needing a bed and make an offer to the most appropriate person – making it unlikely that N will be offered this option.
Could “F House” be made safe – with additional safeguards and the involvement of an external care provider, so that N could safely return there, at least in the short term? Are there premises that could be used as secure accommodation with a bespoke package? These are options the local authority is investigating – but neither was an option that could realistically be put before the judge at this stage. An adjournment was needed, they said.
Judge: You are asking me to authorise a Deprivation of Liberty under the auspices of the Mental Capacity Act or the inherent jurisdiction but without a clear care plan about what that will entail.
Counsel for LA: Yes. The LA simply doesn’t know what the care plan is, given the range of options, or what that might entail. We would ask for an adjournment for a period of three weeks and hopefully come back before the court with some proper options and a better idea of what the care plan will entail.
Judge: I am concerned about delay if we adjourn for 3 weeks. I don’t know if it’s in the best interests of this young person, and obviously that’s a big worry for the court and it would ordinarily lead me to want to adjourn for no more than a few days. Unless a court hearing would be a distraction to the work you are doing to find her a placement and develop packages of care.
Counsel for LA: Yes, we fear coming back to court next week with no progress having been made.
The Official Solicitor
Katie Scott acted for the Official Solicitor to represent N’s best interests. She acknowledged the difficult position the local authority was in, and the impossibility of making a deprivation of liberty order today: “Regrettably, we are where we are.” She added that as a result of recent events, it hadn’t been possible for those acting on N’s behalf to meet N – either remotely or in person – to ask N what her own wishes are in this situation.
Apparently anxious to resolve the situation speedily, the judge asked Katie Scott, “What would be the downside of adjourning for a week, as opposed to three weeks?”. She replied: “It may be another hearing where we don’t get anywhere”.
The judge asked when a capacity assessment would be available:
“It needs an in-person assessment, and she’s not been vaccinated [it had earlier been reported that N had declined vaccination for Covid-19, despite having Hepatitis B, contracted from her mother at birth] so that’s going to be a bit difficult. The popular – if I may put it that way – experts are extremely busy and the waiting lists are very long. It may be that a long period of time is inevitable.” (Katie Scott)
N’s Mother
Having heard from both the applicant local authority and from the Official Solicitor, the judge turned to N’s mother, who had been present throughout the hearing. She is not a party to the case, but the judge pointed out that she could become a party if she wished to. She said, “It must be very distressing for you. I imagine you must be listening to this with- well, it must be horrid to listen to”.
The burning issue for N’s mother turned out to be: “My daughter was abused by one of the carers. I have proof they have assaulted my daughter.” This had been mentioned earlier by counsel for the local authority “for the sake of completeness”: she reported that there had been an allegation of assault on N, which was under investigation, and that staff had been suspended pending that investigation. She had also reported that some staff have refused to return to work at “F House” because they are frightened of N and the risk she poses.
The judge expressed sympathy for N’s mother and briefly discussed with her and with the advocates whether it would be possible for her to get legal advice. (Note – she was in fact represented by Mungo Wenban Smith at the next hearing.)
Mrs Justice Judd then fixed the next hearing for two (rather than three) weeks ahead – as a “compromise” between the need for a speedy resolution, and the risk of “diversion of resources towards the court if I order things back too quickly”.
The judge ended the hearing by saying: “I do hope things aren’t as bleak as they seem, and I do hope something ‘good enough’ will be found for N very quickly, and then something really suitable without much ado after that.”
THE HEARING ON 16th July 2021
The hearing opened with a summary and update about the case from Lucy Leeming (counsel for the local authority). She reminded the court (and public observers) that the case concerned a “vulnerable young lady who had been inappropriately occupying a bed in A&E and we were desperately looking for suitable placement”.
The good news was that a placement had been found and N “is safe there, and no longer in hospital”. However, this is an “emergency” placement” and not suitable long-term.
She also reported that over the weekend immediately following the last hearing on Friday 2nd July, N had experienced “a further episode of dysregulation”.
“She was aggressive. Following allegations of assault and criminal damage to the hospital ward, she was arrested and detained in police custody – taken to a police cell – and everyone feels that this is clearly not an appropriate place for this very troubled young lady.”
At the police station, N was verbally and physically aggressive, racially abusive and assaulted both care staff and police officers. She was subsequently taken to hospital where she was restrained and given 50mg intra-muscular Promethazine Hydrochloride as a sedative, against her will and without the consent of either her mother or the local authority – something the Official Solicitor is now investigating.
She was assessed under the Mental Health Act and deemed to meet the criteria under section 2 for detention, but no bed was available. I’m afraid we went round the loop again. On reassessment a few days later, she was then deemed not to meet the criteria and deemed fit to be discharged.” (Lucy Leeming)
The judge intervened to say, “She needs help. This situation is not helping. The MacDonald judgment was published yesterday and that’s a very similar situation. It’s profoundly worrying”.
Some context
I didn’t recognise the judge’s reference to “the MacDonald judgment” at the time, but I’ve subsequently read it (Wigan BC v Y[2021] EWCH 1982 (Fam)) and recognise it as one I’d seen reported in the media (e.g. here).
The parallels are chilling. In that case, a violent and self-harming 12-year-old boy (“Y”) was held on a hospital ward in conditions that the judge described as “inappropriate, demeaning and, quite frankly, brutal” (para. 53) and as a breach of Y’s Article 5 rights. MacDonald J refused to authorise Y’s ongoing deprivation of liberty on that ward – despite no alternatives being available – ruling that “the absence of an alternative cannot render what is the single option available in Y’s best interests and hence lawful” (para. 59). It would, said the judge:
“… border on the obscene to use a protective jurisdiction to continue Y’s bleak and dangerous situation simply because those with responsibility for making proper provision for vulnerable children in this jurisdiction have failed to discharge that responsibility”. (para. 64)
Since then – and subsequent to the hearings I observed – the Supreme Court has handed down a judgment in Re T, a case heard back in October 2020 concerning a 15-year old placed in non-statutory (unregistered) accommodation. In giving the lead judgment, Lady Black voices “deep anxiety” about the shortage of secure accommodation for children, pointing out that this is not new, and that the problem has been highlighted in multiple court decisions. Back in 2017, Sir James Munby, then President of the Family Division, made a ruling about a 16-year-old with difficulties like those of T in the case before the Supreme Court and N in the case I’ve been observing (all three were expressing the intention to kill themselves and all three were self-harming). Sir James Munby referred to what he termed “a well-known scandal”, namely:
“… the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with.” (In re X (A Child) (No 3) [2017] EWHC 2036 (Fam), para 37)
Lady Black’s judgment in Re T quotes this extract, and similarly draws attention to the government’s lack of action: “It has been drawn repeatedly to the attention of those who could be expected to take steps to ameliorate the situation, without noticeable effect” (para. 7).
There are useful reports on the Supreme Court judgment in Community Care ( here) and by Alex Ruck Keene (here). A report by the Children’s Commissioner, Anne Longfield, charts the extent of the problem and describes the situation of up to two hundred children awaiting secure care at any one time – often detained elsewhere in conditions equivalent to secure care in hospitals or flats or other accommodation with large teams of agency staff (‘The children who no-one knows what to do with’)
As the judge said in the case I observed, echoing the voices of previous judges and foreshadowing the report from the Supreme Court a couple of weeks later, the difficulty of finding accommodation for N serves to “highlight the shortage in nationwide provision for troubled youngsters”.
What was decided in court?
The temporary placement for N is an annex (for her sole residence) to the main building of a children’s home. She has carers with her on a 4:1 basis, 24 hours a day. “Staff have been pulled in from elsewhere to provide the support she needs, and have received appropriate levels of training in relation to restraint.” No information was provided, though, on how N spends her days in this annex.
Counsel for the local authority (Lucy Leeming) invited the court to authorise N’s deprivation of liberty in this children’s home annex on an interim basis. The local authority is continuing the search for more appropriate accommodation and was hopeful that a place might soon become available – although the proposed placement is more than 200 miles away from N’s mother’s home, and her counsel subsequently raised objections to this proposed placement as constituting a “devastating impediment to the resumption of family contact”.
Counsel for the Official Solicitor (Katie Scott) opposed authorisation of N’s deprivation of liberty on the grounds that there is currently insufficient evidence to displace the presumption that N has capacity to make her own decisions about care and residence – at least at times – and because there is at the moment no evidence as to N’s own wishes and feelings in this regard.
Counsel instructed by N’s mother (Mungo Wenban Smith) sought to encourage “jurisdictional pragmatism to ensure we can keep N safe”, by which he meant making an interim finding that there is reason to believe that N lacks capacity, so fulfilling the mental capacity requirement for a DOLS authorisation. This, he said, “might provide a sticking plaster to cover the interim period pending the report [on N’s capacity]”.
In the end, faced with an impossibly difficult situation, the judge authorised N’s deprivation of liberty for an interim period, but did so under the inherent jurisdiction rather than the Mental Capacity Act 2005.
An expert has been instructed – the Consultant Psychiatrist, Dr Claudia Camden-Smith, a very familiar name in Court of Protection proceedings – and she will report on N’s mental capacity in relation to a number of areas including capacity to make her own decisions about where she lives and the care she receives (and whether she has capacity to refuse covid vaccination). The report is due at the end of October.
I hope to observe and report on future hearings in this case.
UPDATE: HEARING on 26th October 2021
It had been hoped, when this hearing was scheduled back in July, that new accommodation might be found for N and that she might shortly move into it, following this hearing. That turned out not to be the case.
Immediately prior to this hearing, P had a number of incidents involving “significant dysregulation” which threw those plans into disarray.
This hearing, before Sir Cohen J, also took place before the independent expert, Dr Claudia Camden-Smith, had produced a report – or indeed had the opportunity to meet with N. I understand that Dr Camden-Smith had arrived one hour late for an appointment with N, who then refused to see her.
Much of the hearing was devoted to updated information about recent periods of “dysregulation”, which have thrown into doubt the suitability of the accommodation options under consideration, and resulted in a change to her care plan. Having anticipated asking to court to authorise a move to a flat, none of the parties now considered that accommodation to be suitable – in part because of its narrow corridors and stairs.
The crisis intervention team caring for N (which includes mental health nurses with over 25 years experience) say that they “have never seen such a level of risk discharged into the community” and that there is “a clear threat to life”. They are, it was reported in court, “truly shocked by the extent of the violence and aggression and accompanying risk”. She now needs 6:1 care to keep her and others safe.
Some recent incidents were described in court.
For example, on 18th October 2021, N had attacked a staff member, dragging her downstairs, punching and kicking her in the back and ribs. She said she wanted to kill her and crack her head open. She was restrained. On release, she pressed the emergency release button into the carpark and went out and damaged vehicles. When the police were called, she went back inside and hid, but was carried from the building and placed on suicide watch in police custody. In the police cell she was observed to be hitting her head and pushing her acrylic fingernails up her nose to create blood which she spat around the cell.
Care staff believe that N’s behaviour goes beyond what can be explained with reference to her mild learning disability and her autism. They see clear signs that N is suffering from psychosis. The Official Solicitor expressed concern that their view has not been taken into account by the trust. ‘The fundamental concern of the Official Solicitor is that if [the current care team] is correct, N is suffering from a major mental illness which has not been recognised and for which she is receiving no treatment“.
The judge expressed concern about the “disconnect” between the current caring team and the trust. He said the “intermittent nature and the seriousness and suddenness of her violent episodes makes her care very challenging“.
“Everyone agrees that the unit she’s now in – an annex to a children’s home – is not suitable. For weeks, if not months, those engaged with N have been looking to find a more appropriate placement. There has been a series of false dawns. Nothing has yet been found. I do not criticise anyone: it is not for lack of effort in this case.”
The judge ordered that at the next hearing there should be a statement from the local authority about alternative placement options, and a revised care plan, transition plan, and conveyance arrangements. The report from Dr Camden-Smith is also awaited.
The next hearing will be on 16th November 2021.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia
Photo by Steve Johnson on Unsplash
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