There was nothing that could be done and a local authority would have to keep searching in circumstances where there was no suitable placement for a young and vulnerable person, the Department for Education has told the High Court.
The case of Z (A Child : DOLS: Lack of Secure Placement)  EWHC 1827 is the latest in a series of cases where judges have expressed concern at the lack of secure placements for such children.
It concerned an application by a local authority for an order under the inherent jurisdiction for a deprivation of liberty authorisation.
Mrs Justice Judd said the “very troubling” case concerned Z, 13, who had until October 2019 been living at home with the mother and father.
Z came to the attention of the local authority as a result of absconding from school, and also failing to return home.
Matters escalated quickly, and Z needed to be accommodated by the local authority. Three placements broke down because it was impossible to meet Z’s needs or to manage the behaviour associated with those needs.
The judge said: “It is not necessary here to detail that behaviour but only to record that it included serious actual and threatened physical harm to others, self harm, and damage to property. The seriousness of the situations arising had led to involvement by the police. At one point Z was handcuffed to the bed.”
An interim care order was made on 14 November 2019 together with a secure accommodation order which was renewed on 9 December.
Z was placed at a secure unit and remains there.
On 5 March 2020 the secure accommodation order was extended for a period of six months until 5 September. That order remains in force.
Hopes that Z’s presentation would improve in the secure environment of the unit were not borne out.
Assessments by a consultant clinical psychologist and a consultant psychiatrist concluded that Z was not suffering from a mental illness. It is thought that Z’s extremely dysregulated behaviour may have been due to some sort of trauma.
Throughout the time at the unit, Z expressed a wish not to have contact with the parents.
On 27 May 2020 the unit gave the council notice that they wished to terminate the placement as they did not consider they were able to meet Z’s needs or to keep Z safe.
Mrs Justice Judd said: “Since that time the local authority has made very extensive searches to find a suitable secure placement for Z. Over 30 institutions have been approached (including in Scotland) via a central agency, but despite daily calls and updates, nothing is available. It is said that there are some 40 children awaiting secure placements at the current time.
“The local authority has not confined itself to regulated secure accommodation but has also enquired with unregulated homes, to which they would propose adding a suitable support package. Nothing has borne fruit.”
The local authority concluded that the only possible contingency plan was to place Z in a council home rented, by it, together with four members of staff who are available to care for and contain Z at all times.
It therefore asked the court to sanction a range of restrictions to enable this arrangement. These include that Z will not be allowed out at all, save for appointments when there will be an escort of three staff. Z will be locked into a bedroom at night and the house will be locked at all times.
The judge said: “There is no doubt that these are draconian restrictions, and that this can be no more than a holding position until a suitable placement becomes available. There is no provision here for education or therapeutic support, although a plan is to be drawn up in the next four weeks. The local authority does not pretend that this proposal is anything approaching ideal for Z, but they find themselves simply unable to identify any other placement.”
The parents, who said nothing on offer from the local authority had seemed to improve Z’s presentation over a lengthy period (seven months) of secure accommodation, applied to discharge the interim care order and for Z to come back home.
The Guardian’s most recent position statement set out that she considered the local authority’s present plan to be sufficiently safe and secure.
Mrs Justice Judd said the choices faced by the court, given that the placement at the unit would come to an end, were either that Z be placed as proposed by the local authority contingency plan or be returned to the care of the parents.
“I accept the recommendation of the local authority and guardian that returning Z to the care of the parents is simply not a safe or sensible option. Z has refused to see the parents for many months. Moreover, it is hard to see that they could possibly keep Z from running away, self harming, or harming other people (including themselves). This is what Z has repeatedly being doing over many months,” the judge said.
She suggested that the more difficult question was as to whether or not the proposed order safeguarded and promoted Z’s welfare. “The truth is that it is sub-optimal. It would be much better for Z to be placed in properly registered, regulated secure accommodation with specialised staff who can manage the worrying and unregulated behaviour so as to be able to get to a situation emotionally where Z can benefit from therapy and education.”
This was, however, not the choice she had. “Because of the dire circumstances of this case the Secretary of State for Education was invited to attend this hearing by counsel to see if there was any possible assistance or suggestions that could be offered in circumstances where such a young and vulnerable person is without a suitable placement. I am very grateful that the Secretary of State arranged for Mr. Holborn of counsel to attend, but the response was quite clear. There is nothing that can be done and the local authority will have to keep searching.”
Mrs Justice Judd said one query was as to whether or not there were any free secure beds usually earmarked for children via the criminal justice system which could be re-designated for a child in the 'welfare' system. “As of today, the answer to that is apparently that there are not, or at least no institutions that consider they can manage the extent of Z's behaviour.”
The judge said that in all the circumstances, it seemed to her that the proposed order safeguarded and promoted Z's welfare better than any of the other available options.
“Certainly depriving Z's liberty in this way is necessary and proportionate in that it should keep Z physically safe, and also prevent Z from harming others. Nothing can be done to assist Z to address the root cause of Z's presentation without this. Hopefully it will be possible to 'hold' Z in this position until a suitable placement becomes available and the long process of being able to allow the necessary therapeutic assistance to be fully engaged,” she said.
The judge said the Children’s Commissioner had been informed as to the circumstances of the case, and had sent a representative. Mrs Justice Jubb also said she hoped that her judgment would be passed to the Secretary of State for Education.
Mrs Justice Judd noted that it had been less than three months since Cobb J published a judgment in the case of Re S (Child in Care: Unregistered Placement)  [EWHC] 1012 expressing concern about the placement of a 15 year old girl in a holiday cottage with three members of staff because there were no placements available for her in regulated accommodation.
Cobb J had referred to a recently published DfE consultation paper on reforms to unregulated provision which reads in its introductory section:
"We are particularly concerned that increasing numbers of children under the age of 16 are being placed in situations where either the provider is only offering support and not care, or care is being provided but the provider is operating illegally (an unregistered setting). It is unacceptable for any child or young person to be placed in a setting that does not meet their needs and keep them safe, for any amount of time".
Cobb J stated "I share these concerns. Regulation of our children's homes offers an essential safeguard to the delivery of appropriate care for our young people, many of whom, like Samantha, are damaged through their own life experiences".
Mrs Justice Judd said: “All that I can do is to add my voice to this in this very worrying case.”
The judge made the declaration sought “with significant misgivings”. She said the case should be brought before her or another High Court judge within 14 days.
She added: “I would like to thank the local authority for the hard work they have done to try and help this vulnerable and damaged child, even if it has not borne fruit as yet, and also extend my gratitude to the guardian. I know that the parents will be very worried for Z's welfare, and we can but hope that things will improve very soon.”
In November last year the Court of Appeal issued a ruling in B (Secure Accommodation Order), Re (Rev 1)  EWCA Civ 2025, the context of which was Lord Justice Baker said could "fairly be described as the crisis in the provison of secure accommodation in England and Wales".
The previous year the Family President, Sir Andrew McFarlane, had also expressed concern in Re T (A Child) (ALC Intervening)  EWCA Civ 2136
Lord Justice Baker said: "In the 12 months since Re T was decided, there has been no improvement in the provision of approved secure accommodation. On the contrary, the position seems in some respects to have become worse."
He added: "This significant shortfall in the availability of approved secure accommodation is causing very considerable problems for local authorities and courts across the country. It has been the subject of expressions of judicial concern in a number of cases by judges dealing with these cases on a regular basis."