A fourth High Court judge this year has sent a copy of their judgment to the Secretary of State for Education in a case concerning the lack of secure accommodation for a vulnerable young person.
The latest case, Lancashire County Council v G (Unavailability of Secure Accommodation)  EWHC 2828 (Fam), concerned G, who is 16 and currently admitted to an adult mental health ward (due to a lack of CAMHS psychiatric intensive care beds).
Mr Justice MacDonald opened his judgment with a quote from Nelson Mandela that "there can be no keener revelation of a society's soul than the way in which it treats its children".
The local authority contended that G was in urgent need of a secure placement. “As of this morning, no such placement is available for G anywhere in the United Kingdom," the judge said. "In the alternative, the local authority seek to place G in a regulated non-secure placement under the auspices of an order authorising the deprivation of her liberty. Once again, as of this morning, no such placement is available for G anywhere in the United Kingdom. As I have stated, there is no CAMHS psychiatric bed available for her and, in any event, the court has been this morning provided with a report from G's treating clinicians confirming that G does not meet the criteria for continued detention under the mental health legislation.”
Mr Justice MacDonald continued: “The only placement currently available to G when discharged from the adult psychiatric ward is an unregulated placement that has already informed the local authority that it is not prepared to apply to OFSTED for registration. By reason of the fact that this placement was only identified very shortly before this hearing, the precise reasons for this are unclear, as is the manner that the placement will seek to apply the regulatory framework applicable to secure accommodation orders, as the authorities make clear it must, should the court authorise the deprivation of G's liberty.” [judge’s emphasis]
The judge said that within this context, the local authority found itself compelled to advance this placement as being the only option available to safeguard G's welfare.
The Children's Guardian was unable to give her support to G being placed in this placement under the auspices of an order depriving G of her liberty, albeit that she recognised that this was, in reality, the only option currently available for G.
Mr Justice MacDonald said that in these circumstances G, “a vulnerable young woman with multifaceted difficulties and at high risk of serious self-harm or suicide who remains inappropriately placed on an adult mental health ward” would, if discharged from her current detention under s.2 of the Mental Health Act 1983, have nowhere to go unless the court authorised the deprivation of her liberty at an unregistered placement that had stated its intention not to seek registration and which the Children's Guardian did not feel able to endorse as being in her best interests.
“The stark choice thus faced by the court is to refuse to authorise the deprivation of G's liberty in an unregistered placement, which will result in her discharge into the community where she will almost certainly cause herself possibly fatal harm, or to authorise the deprivation of G's liberty in an unregistered placement that all parties agree is sub-optimal from the perspective of her welfare because that unregulated placement is, quite simply, the only option available,” the judge said.
Mr Justice MacDonald said he was satisfied that the court was “left with no option” but to make an order authorising the deprivation of G's liberty at the unregulated placement located by the local authority. “In short, this is the only placement available and the priority must be to keep G safe. She has nowhere else to go. As I make clear however, I harbour grave reservations about this decision.”
The judge said it was a fundamental principle of a democratic society that the State must adhere to the rule of law when interfering with a person's right to liberty and security of person.
“Within this context, I am left asking myself whether, where there is only one, sub-optimal option open to the court apart from allowing G back into the community where she may well end her own life, the court is really exercising its welfare jurisdiction if it chooses that one option, or if it is simply being forced by mere circumstance to make an order irrespective of welfare considerations,” he said.
“At best, the decision can be based on only the narrowest of such considerations, namely the bare need to prevent G from harming herself. Within this context, I echo the words of the former President in Re X (A Child)(No.3) as I am left acutely conscious of my powerlessness, of my inability to do more for G.”
Mr Justice MacDonald directed that his judgment be sent forthwith to the Children's Commissioner for England, the Secretary of State for Education, the Chair of the Residential Care Leadership Board, the Minister for Children, the Chief Social Worker, OFSTED and the Secure Welfare Coordination Unit.
Mr Justice MacDonald is the latest High Court judge to express concern at the lack of secure accommodation available.
In July the Department for Education told the High Court (Judd J) that nothing could be done and the local authority would have to keep searching in circumstances where there was no suitable placement for a young and vulnerable person.
Mrs Justice Judd’s ruling in Z (A Child : DOLS: Lack of Secure Placement)  EWHC 1827 came less than three months after 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.
A week after Cobb J's ruling, His Honour Judge Dancey sent the Secretary of State a copy of his judgment in Dorset Council v E (Unregulated placement : Lack of secure placements)  EWFC B17, which concerned E, an extremely vulnerable young man aged 16.
A Department for Education spokesperson said: “Local authorities are responsible for ensuring that there is sufficient accommodation available to meet the needs of children they look after. The Government has invested more than £40m in secure children’s homes to support councils in meeting that duty.
“Our bold, broad and independently-led Care Review will launch soon, and will support improvements in the children’s social care system.”
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 Lord Justice Baker said could "fairly be described as the crisis in the provision 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."