High Court judge describes detention of teenage girl in room without windows on A&E ward for two-and-a-half months as “intolerable”

In BA (A Child), Re (DOLS in Hospital) [2026] EWHC 653 (Fam) (20 March 2026), Mr Justice McKendrick concluded: “It is absolutely necessary for there to be an order authorising the deprivation of BA's liberty to provide her with education and therapy to assist her to be kept safe from serious harm. I am satisfied there is no section 25 1989 Act accommodation available and as such the DOLs order in the identified children's home is required.”

Meanwhile, McKendrick J drew attention to the high number of applicant authorities who are unable to provide “basic information” in respect of the educational supervision being provided to children the subject of an order for the authorisation of the deprivation of their liberty.

The case concerned a vulnerable thirteen-year-old girl, anonymised in the judgment as BA.

In May 2025, BA was sectioned under section 2 of the 1983 Mental Health Act. The followng month the section 2 was converted to a section 3 detention.

BA was discharged from the mental health hospital in December 2025.

Public law proceedings pursuant to the Children Act 1989 were commenced, effectively on the basis BA was “beyond parental control”. An interim care order was made in December 2025.

McKendrick J noted: “BA's parents accepted being unable to care for BA at home and that BA was non-compliant with medication on occasions. It was accepted BA has shown self-harming behaviours which have included head banging, ligaturing, stock piling medication and friction burning.

“BA has demonstrated physical violence towards others including her parents, the police and hospital staff. BA's condition has resulted in restraint to prevent harm and medical attention including seclusion and the use of sedation.”

BA was moved to a "solo" placement, however, this placement failed very quickly as BA demonstrated increasingly violent and self-harming behaviours.

Since early January 2026, BA has been deprived of her liberty in an accident and emergency ward of an acute hospital in London.

McKendrick J observed: “She is placed in a single room with an ensuite bathroom. The room has no windows. The room is within a noisy, busy paediatric accident and emergency ward. She is escorted into the garden on occasion. She appears to have received no education, either broadly interpreted or narrowly.”

The matter came before a Deputy High Court Judge. The court made a deprivation of liberty order. The restrictions included that: BA may be under continuous supervision and control with staff available at all times on a ratio of 4:1, with 15-minute welfare checks when she is settled in her room; BA may not leave the hospital without supervision by staff - if BA leaves the hospital unaccompanied, the supervising staff will be required to follow and contact the police; and use of physical intervention as a last resort and only where verbal strategies and de-escalation techniques have failed, for the shortest time possible and with minimal force. Any use of physical restraint is only permitted to be carried out by supervising staff who are restraint trained.

The court directed for the matter to be relisted before the national DOL List on the first available date after 2 March 2026.

The applicant local authority recognised the hospital placement was “very far from ideal”, but submitted it was the only identified place that could keep BA safe.

This matter came before Mr Justice McKendrick sitting in the national DOLS List in March 2026 with a time estimate of one hour. The hearing was held in private.

The applicant's case summary noted there was one potential placement which could offer BA a place, which was being investigated.

The first and second respondents opposed BA remaining in the hospital and the related authorisation of the deprivation of her liberty. They submitted she should return home to their care.

McKendrick J said: “I made clear the situation was intolerable. I made directions for the applicant to file and serve a detailed witness statement setting out interim education and the transition from the hospital setting to a placement. I made a direction for the parents to set out their plan for BA to return home to their care to consider the safety of that potential option. I listed another hearing to take place in person with a time estimate of two hours. At that hearing the applicant filed evidence of a transition plan to move BA to a residential children's home around thirty minutes from her parents' home.”

McKendrick J authorised the deprivation of liberty at the hospital setting, “strictly limited to a short period of time to permit the transition to the children's home”.

His order authorised BA's conveyance between the hospital and the new children's home during the transition period.

At the end of the transition period, the order provides only for authorisation of the deprivation of BA's liberty at the children's home.

Discussing the case, McKendrick J said: “The highly concerning facts which underpin this application led me to conclude a short written judgment was needed. It is intolerable that a highly vulnerable child has been detained in a room without windows, in a busy and noisy accident and emergency ward, for nearly two and half months. The fact the application was heard in private should be not barrier to putting such matters in the public domain. The common law open justice principles are of fundamental importance.

“Despite her dysregulation and challenging behaviour, BA is not detained because she is of unsound mind. She was released from section under the 1983 Act and has been seen by mental health professionals since then and it has not been suggested she requires detention under the 1983 Act. She has not entered the criminal justice system. She is not detained after conviction. She is not detained pre-conviction to be brought before the competent authorities or to prevent her committing crimes or fleeing after having committed one.”

He continued: “Consistently with Article 5, ECHR the deprivation of her liberty may be authorised for the purposes of educational supervision, see Article 5 (1) (d). I have been surprised sitting in the National DOLS List by the high number of applicant authorities who are unable to provide basic information in respect of the educational supervision being provided to children the subject of an order for the authorisation of the deprivation of their liberty. It appears local authority social work and special educational needs teams work quite separately.

“It has been necessary to make specific directions against applicant local authorities to ensure the special educational needs team provide information to the court. Basic information about EHCPs, statutory annual reviews and what has taken place for a pupil post exclusion are often absent from the written evidence. Section 19 (1) of the Education Act 1996 places a duty on local authorities to make arrangements for the provision of suitable education for children of compulsory school age who cannot attend school because of illness, exclusion from school or otherwise.”

Concluding the case, McKendrick J said: “Overall, therefore I am satisfied it is appropriate to grant leave to the applicant to invoke the High Court's Inherent jurisdiction pursuant to section 100 (3) of the 1989 Act, notwithstanding the existence of the statutory scheme set out in the 1989 Act. I am satisfied that the test in section 100 (4) is met as there is no secure accommodation in respect of which the applicant can apply to seek a section 25 1989 Act order.

“Secondly, I am satisfied without exercising the court's powers under its Inherent Jurisdiction BA will likely come to harm by way of self-harming behaviours or the involvement in violent behaviours. She requires educational provision and the provision is a broad package of tuition and a broad range of therapies. This will be provided notwithstanding she is out of school and will be provided having regard to her EHCP. It is absolutely necessary for there to be an order authorising the deprivation of BA's liberty to provide her with education and therapy to assist her to be kept safe from serious harm. I am satisfied there is no section 25 1989 Act accommodation available and as such the DOLs order in the identified children's home is required. The applicant with its interim care order and the parents in the exercise of their parental responsibility both agree to BA living in the identified children's home.

“There is no dispute that the constant supervision and control and locked doors and windows and the fact BA is not free to leave means that the "acid test" for confinement is met, see Storck v Germany (2006) 43 EHRR 6. The confinement is imputable to the State – the local authority applicant. Further I have concluded that BA's best interests dictate that her confinement in the hospital cannot continue beyond 14 days from 16 March 2026 and the authorisation of the deprivation of liberty will only be in her best interests in the children's home at the end of the transition. I am satisfied that the DOLs order is necessary and proportionate to the harm BA is at risk of.”

McKendrick J finally thanked the Guardian and the applicant's social work team for their “diligent efforts” to secure a means for BA to leave the inappropriate hospital setting.

Lottie Winson