FD25C40130 - [2025] EWHC 1690 (Fam)

As N’s Guardian told me at a final hearing a judgment was necessary in this case to provide finality and closure for N. I was told that a judgment from me will literally and metaphorically help her to draw a line under her past. Thus, although the application before me was ultimately dealt with by consent, N’s Guardian asked me to give a short judgment so that N may understand her own “journey” and to highlight the problems within the system which have had to be negotiated to enable this application to end as happily as it has.

I have spoken to N at number of the hearings before me. As she became more familiar with the proceedings, and more comfortable meeting me remotely, she came out of her shell. N very much wanted to reach adulthood without any restrictions on her liberty, other than those she could impose herself. At the last hearing, she told me she had secured employment. She was modest about her achievement, but I considered it was significant. She was looking to her future. She should be very proud about her achievements and how far she has travelled. It was my pleasure to wish her well for the future and to express the hope that she continues to accept the help now offered to enable her to achieve all that she wants for herself.

N’s case was one of the many cases that are issued through the Deprivation of Liberty List each year. According to the Ministry of Justice in 2024 1280 children and young people were the subject of a Deprivation of Liberty order last year. The orders are made under the Inherent Jurisdiction. The applicants are typically local authorities or Hospital Trusts. The inherent jurisdiction is a welfare jurisdiction. The young person’s welfare is the paramount consideration. The orders are draconian. They are a significant infringement by the State of the child or young person’s right to liberty. They are only made where it is lawful, necessary and proportionate to detain or restrict a child or young person’s liberty in order to secure their welfare. The orders must have an educational element - Art 5 (1)(d) ECHR.

Deprivation of Liberty orders are permissive in nature. The order authorising the deprivations of liberty is not a prescriptive list of restrictions which must be imposed. It is a menu of what may be imposed by the applicants if it is necessary and proportionate to do so to safeguard the young person. The applicants must at all times use the least restrictive option.

N, like many of the young people who are the subject of a Deprivation of Liberty orders, has suffered trauma. They exhibit challenging behaviours which are often extreme. They put themselves at risk of significant harm and possible death. They are in crisis running from their placements, self-harming and taking steps to commit suicide. Section 136 of the Mental Health Act 1983 is used but it is of limited duration. The police have nowhere suitable to detain them and they find themselves in custody. They, like N, are assessed for the purposes of the Mental Health Act 1983 but invariably they fall out with ss.2 or 3 of the Mental Health Act 1983. They have capacity which means that the Mental Capacity Act 2005 cannot be used to make decisions about their placement, their care and support and their treatment nor can it be used to authorise their detention. They are sometimes regarded as “too risky” for secure accommodation pursuant to s.25 of the Children Act 1989. Sometimes, although they may be suitable for secure accommodation under s.25 of the Children Act 1989, no such bed is available or likely to become available within the child’s timeline because of the paucity of provision. They thus are outside the statutory schemes which would permit their detention. The purpose of exercising the inherent jurisdiction is to fill the statutory lacuna. It grants the applicant permissive powers to detain the young person and restrict their liberty so that they may be safe. Under the orders the children are often kept in unregulated, and sometimes, unsuitable setting to keep them safe in response to a crisis whilst other more suitable placements are found. That can be a protracted process given the paucity of provision and the need often to develop and implement bespoke provision. It means that children and young people are detained or have their liberty restricted for often protracted periods of time.

When the application in N’s case came before this court, she, like many young people subject to a Deprivation of Liberty application, was in crisis. The chronology in the middle of February 2025 was cyclic and harmful. Her needs were not being met. She was not safe. There was a real risk she would take steps to commit suicide and succeed. I have given permission to N’s Guardian and her solicitor to release the papers in N’s case to the Official Solicitor to consider whether N has a claim against either the local authority or the Hospital Trusts in this case in relation to (i) the period in the middle of February when N was stuck in a revolving door between the police, the local authority and the Hospital Trust and (ii) in relation to her detention in hospital when the Guardian says the restrictions authorised by the court were imposed rigidly and prescriptively and the least restrictive option was not understood by those trusted to implement them. Having given permission to the Guardian and the solicitor to release the papers, I do not comment on any claim N may or may not have that will be for another court if proceedings are taken on her behalf.

It is, however, worthy of comment that the trajectory of N’s case changed once there was multi-disciplinary working. From the multi-disciplinary meeting on 14 February 2025, there was joined up thinking and a plan began to be formulated that met N’s needs. It is not perfect, but it was a plan with which N could and does engage with. Like any good plan, it had an objective and a timeline. The aim was that N should be free from any restrictions other than that which she chose to impose on herself by her eighteenth birthday. It recognised that she was soon to be an autonomous adult with capacity.

Often, we learn from what went wrong but we can also learn from what went well. From N’s case, in my judgment we can learn that:

The application before me has perhaps turned out better than could have been anticipated in February 2025. I acknowledge N’s part in that. She has chosen to engage and to work towards a common goal. I wish N well for her future. I know, as she does, that she will face challenges on the road ahead, but I hope, with the appropriate scaffolding of care and support in place, she will meet those challenges and go on to have the bright future she deserves. I commend both N’s key social worker in this case and her Guardian. Both have been strong advocates for N and determined to ensure her needs are met.