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High Court judge sends copy of ruling to ministers to express concern over “nationwide problem” of lack of capacity for secure care

A High Court judge has sent ministers a copy of a ruling in which he expressed concern at a “nationwide problem” of the very limited capacity in the children's social care system for young people with complex needs who need secure care.

Mr Justice Cobb said it appeared that demand for registered places was “currently outstripping supply”.

He added: “This is the frustrating experience of the many family judges before whom such difficult cases are routinely presented. It is also the experience of the Children's Commissioner.”

The judge made his comments in S (Child in Care. Unregistered Placement) [2020] EWHC 1012, in which he authorised the deprivation of liberty of ‘Samantha’ (not her real name), a 15-year-old, extremely vulnerable girl with complex needs who is the subject of an interim care order in favour of East Riding of Yorkshire Council.

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Samantha and her younger siblings experienced a chaotic childhood, with little stability or security. Their mother suffered from mental illness; there was evidence that both of her parents misused drugs and/or alcohol.

Samantha was first formally accommodated by East Riding under section 20 Children Act 1989 on 6 March 2019 and placed in a residential children's home on 13 March 2019. She continued to abscond from this home on a daily basis.

During her first month in the children's home, Samantha swallowed pieces of razor blades when staff told her that she could not leave the home during the evening. She has seriously self harmed in many other ways, the judge said.

The council was concerned that if she stayed at the home, she would suffer significant harm. She has since moved 14 more times in the last 12 months.

In the two years to late 2019, Samantha had been reported missing from home, or other placements, no fewer than 123 times; that figure was now 131. She has often been assessed to be under the influence of drugs, and was also seen to be at risk of child sexual exploitation.

She is currently living as the only young person in a holiday cottage in rural North Yorkshire which has been rented by East Riding solely for the purposes of accommodating her.

Samantha is living with, and is supervised day-by-day by, up to three adult members of staff employed by an independent care agency. This placement is unregistered, and therefore unregulated by Ofsted.

The judge said her time at the cottage was the longest period of stability Samantha had had since her stay at a secure accommodation unit in Merseyside. However, this short-term let is due to expire in mid-June. If the lease is not extended, Samantha and her carers will have to move.

Suggesting that the case was “depressingly all too familiar”, Mr Justice Cobb said: “Samantha is one of a number of young people around the country who, as children in care, are accommodated in unregistered placements. Samantha, again like many similar young people, is the subject of an order authorising [East Riding] to deprive her of her liberty in material respects while in her placement. This order has been made in her own interests. The local authority applies today to renew that order.”

The judge said he was satisfied that the conditions, or limitations, put forward by the council (and set out in the judgment) were necessary and proportionate, and, bearing in mind Samantha's history of challenging and risky behaviours, they were the least restrictive which he could contemplate for her at this time.

He added that he was satisfied that there was reasonable cause to believe that, if he did not exercise his powers to deprive Samantha of her liberty, she was likely to suffer significant harm and there was no other way available to East Riding for her to be protected. Samantha herself accepted these conditions.

“Overall, therefore, I am satisfied that these conditions remain in her best interests and I will make the declaration sought by the local authority,” he said.

Mr Justice Cobb went on to say that the council had, “unsurprisingly”, become profoundly pessimistic in its search for a secure accommodation placement for Samantha. He set out details of the efforts made by East Riding in undertaking an extensive nationwide search for a placement.

The judge acknowledged that the crisis caused by the coronavirus COVID-19 pandemic would have impacted on the provision of secure accommodation at present, and made the task of finding a bed in a secure unit for Samantha yet more difficult.

However, he said he wished to stress that the problems raised in the case were not related to the pandemic. “The absence of satisfactory secure provision is a chronic problem, which in recent years has become ever more acute to the significant detriment of a large number of very damaged young people in our society. It should not be forgotten that in this case, as I point out above, ERYC, has been looking for a place for Samantha since well before the pandemic arose.”

The judge included in his ruling the response of the Children’s Commissioner to his invitation to various government departments and national agencies to advise whether they could assist specifically in finding a placement for Samantha.

The Commissioner noted, amongst other things, that she had been highlighting her concerns on the issue to the appropriate authorities for over a year.

In his conclusions Mr Justice Cobb said: “Samantha is reported still to be an anxious, scared teenage girl who, as my summary of her history above will have revealed, has suffered significant instability in her life both before she came into care, and since. She is, as the Children's Commissioner observes, one of those young people who has a ‘very high level of need’.

“She appears at times to struggle to regulate her emotions; when she feels scared, out of control or restrained, she has resorted to 'fight or flight', and has harmed herself or others, and/or has absconded. She desperately needs a secure, boundaried, setting with therapy and education. I am sure she means it when she tells me that she craves an ordinary life.”

Mr Justice Cobb said he was satisfied that the council was doing its best for Samantha, and it should continue to have the facility of the deprivation of liberty declarations, while she resides in the current holiday cottage.

“But currently, as [East Riding] itself acknowledges, this is not a situation which truly meets her multiple needs – for therapy, education, stability and security. The authority feels powerless to secure an appropriate alternative placement for her, and accepts that the care system overall has in many ways failed her,” he added.

Mr Justice Cobb said the President of the Family Division, Sir Andrew McFarlane, had had sight of the judgment in its final draft. “He entirely shares the concerns which I have expressed above about Samantha's situation, and about the significant number of similar cases which are regularly brought before the Family Courts; the essential message of this judgment of course echoes what he himself had said eighteen months ago in Re T [2018] EWCA Civ 2136.”

The judge sent a copy of his ruling in S (Child in Care. Unregistered Placement) to the Secretary of State for Education, the Chair of the Residential Care Leadership Board, the Minister for Children and the Chief Social Worker.

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