Commissioner calls for stronger protections for children being deprived of their liberty

The Government has announced major reforms to children’s social care services – ending the cycle of late intervention and keeping children safe and helping families thrive.

Context

As part of the Government’s plans to better understand how to support children with complex needs, the Department for Education commissioned the Children’s Commissioner for England, Dame Rachel de Souza, to conduct interviews with children who have been deprived of their liberty, their parents and professionals that support them.

Her independent report has now been published. It contributes to the Department’s work with NHS England on their joint Task and Finish Group: Improving Cross Sector support for children with multiple needs in complex situations.

As readers will know, the Children Act 1989 does not have provision for a child to be deprived of their liberty other than in a secure setting. Therefore, when this is deemed necessary, but a place in a secure setting is not available or appropriate, a deprivation of liberty order must be sought from the High Court or Court of Protection. This gives authorisation for restrictions such as constant supervision, restraint, and limits on outside contact to be imposed in a non-secure setting.

In her executive summary, Dame Rachel notes the dire situation of these children is regularly cited in the judgments and has been raised by both former and current Presidents of the Family Division.

Summary

The Commissioner calls for stronger protections for children being deprived of their liberty in the community – explaining that they are often, by virtue of their restrictions, extremely isolated and largely hidden from view.

The research reveals the full scale of the challenge facing children under deprivation of liberty orders, who are often in care, have severe and complex disabilities, and many have faced trauma, neglect or mental health illness.

Children in England can be deprived of their liberty in secure settings, specifically custodial settings (for youth justice), secure children’s homes (for welfare reasons) and mental health units (for assessment and treatment). They are imposed when children are deemed to be at high risk of harm to themselves, from others or occasionally towards others.

But a growing number are being deprived of their liberty outside a secure setting, such as the child’s home, a children’s home or residential school through the use of deprivation of liberty orders. Children are placed under constant supervision which prevents them from leaving their accommodation at will and may be restrained by professionals when this is deemed necessary.

Statistics

View Figure 1 on page 15 of the report for statistics on the different ways children can be deprived of their liberty.

Dame Rachel observes that the number of deprivation of liberty orders has grown steadily over recent years.

• 579 applications in 2020/21 (a 462% increase since 2017/18)
• 1,368 applications for 2023
• 590 applications in the six months to June 2024

Interviews

Based on interviews with 15 children subject to High Court deprivation of liberty orders, the research reflects the shared experiences of children living under these restrictions – and the missed opportunities for children to have their voices heard and be involved in decisions about their lives.

The details of the interviews are set out in Chapter 4 at pages 26-70.

There are some powerful quotes in this Chapter, such as:

“It’s like you can’t really trust anyone ‘cause you don’t wanna make a relationship you’re gonna lose.”

“I can say what I like and people can pretend to listen but it never gets took into consideration, ever.”

Two key messages stood out for Dame Rachel from these interviews:

• Far fewer children should be deprived of their liberty. There is a critical need for hiqh quality registered children’s homes which can provide safe accommodation and therapeutic support.
• In the small number of cases where it is necessary to deprive children of their liberty that should never be in an illegal children’s homes and should be based on a clear legislative and statutory framework.

The Commissioner’s findings

12 findings are set out across the following themes:

• Instability and lack of support prior to deprivation of liberty
• Opportunity for children to have their voices heard and be involved in decisions about their lives
• Restrictions associated with deprivation of liberty orders
• Quality of placements and care
• Restraint and segregation
• Education
• Opportunities for peer interaction
• Activities and daily routine
• Mental health
• Physical health
• Family
• System level challenges

Concerns about the lack of suitable therapeutic foster carers or residential settings available is a key issue – and one shared by local authorities and health professionals supporting children, and by the judges imposing the orders.

The report confirms there is a clear need for more specialist children’s homes, with integrated support from social care, health and other agencies, and a trauma-informed and children centred approach to care and support.

Not all experiences of children living with a deprivation of liberty order were negative, but the impact and effectiveness of the order depended on the quality of care and professional support they had received, access to education and therapy, and, including where possible, in the decisions made about their lives were key factors.

Summary of recommendations

For a short report it contains a lot of recommendations – 38 to be precise!

Here are just a few that jumped out at us. Do take a look at pages 78 – 90 for all the details.