Judge issues second ruling sharply criticising lack of suitable regulated placement for vulnerable 16-year-old woman with complex needs

A High Court judge has sent a second judgment in less than a month – this time “more in exasperated hope than expectation” – to the Children’s Commissioner for England, the Secretary of State for Education, the Minister for Children and others over the lack of regulated accommodation for vulnerable children.

Last momth Mr Justice MacDonald handed down his first ruling in Lancashire CC v G (Unavailability of Secure Accommodation) [2020] EWHC 2828 (Fam), which concerned G. She is a vulnerable 16 year old with multifaceted difficulties and at a high risk of serious self-harm or suicide.

In his second judgment, Lancashire County Council v G (No 2) (Continuing Unavailability of Secure Accommodation) (Rev 1) [2020] EWHC 3124 (Fam), which was handed down on Friday (20 November), the judge said it was still the case that there was neither a secure placement, as put forward by the local authority, nor a regulated, non-secure placement, as favoured by the Children’s Guardian, available for G anywhere in the UK.

He added that while G remained relatively settled in an unregulated placement, there had recently been signs that this period of calm was fragile and would be temporary.

Mr Justice MacDonald said that the local authority had once again found itself compelled to advance an unregulated placement as being the only option available to safeguard G’s welfare. The Children’s Guardian was once again 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 the Guardian recognised that this was in reality the only option currently available.

The judge said: “Once again, the court is presented with the fait accompli that I described in my initial judgment, namely, the need to retain G in a placement that is sub-optimal in terms of G's wider welfare needs because the alternative is discharging her into the community where she will, I remain satisfied on the evidence before the court, be at a very high risk of fatal self-harm."

Mr Justice MacDonald noted that whilst G remained in an unregulated placement outside the statutory regime laid down by Parliament under s 25 of the Children Act 1989, it was necessary for the court to monitor closely the extent to which the unregulated placement continued to be in G's best interests.

“In particular, it would not be appropriate for the court simply to give an open ended authorisation until such time as the local authority is able to locate a suitable placement (see the guidance issued by President of the Family Division entitled Practice Guidance: Placements in unregistered children's homes in England or unregistered care home services in Wales at [1]),” he said.

The judge also pointed out that there was a cost to placing the High Court in what was, essentially, a regulatory role as a result of the acute shortage of clinical provision for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive clinical environment, of secure placements and of regulated placements described as in his previous judgment.

The proceedings had been before a Deputy High Court judge on two occasions and before a judge of the Family Division on four occasions, including this latest hearing. “Within this context, it is sobering to examine the cost to date, in both money and time, consequent upon the unavailability for G of a secure placement or regulated non-secure placement. This is not in anyway to suggest that resources are being inappropriately deployed by those agencies concerned with G's welfare, but rather to highlight the financial and wider resource consequences of the position reached in this case.”

The judge said a lack of adequate provision for secure accommodation and regulated provision for children had let in this case to additional expenditure to date of £17,000 of public money without any appropriate result for G. “The foregoing figures do not include the cost to the public purse of six hearings before the High Court. At least one further hearing will be required.”

Mr Justice MacDonald said the “stark choice” once again faced by the court was to refuse the continued authorisation of the deprivation of G's liberty in an unregulated placement, which would result in her discharge into the community where she would almost certainly cause herself possibly fatal harm, or to authorise the deprivation of G's liberty in an unregulated placement that all parties agreed was sub-optimal from the perspective of her welfare because that unregulated placement remained the only option available.

He determined that on balance the placement remained in G’s best interests, and set out the factors that he had borne in mind in reaching that decision.

The judge noted that the local authority continued “its tireless work” to try and find G a placement that would meet fully her highly complex needs.

He listed the matter for a further hearing in 14 days “in the hope that such a placement will have been found or, failing that, to again review the authorisation to deprive G of her liberty at her current, unregulated placement”.

The judge said he was once again 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. “Once again, this is the only placement available and the priority must be to keep G safe. Once again, I harbour grave reservations about this decision.”

Having been given a copy of the Children’s Commissioner for England’s recent (October 2020) briefing paper, The children who no-one knows what to do with, Mr Justice MacDonald highlighted three observations it contained:

i) There is currently no work being done to forecast provision and to co-ordinate provision of secure accommodation and regulated placements in order to match need.

ii) On information available to the Children's Commissioner, there are some 200 children awaiting a place in secure accommodation.

iii) On the information available to the Children's Commissioner, during 2018/2019 12,800 children spent some time accommodated in unregulated placements with no regulatory oversight by OFSTED.

The judge directed “once again and more in exasperated hope than expectation” that a copy of his judgment be sent to the Children's Commissioner for England, to the Gavin Williamson, Secretary of State for Education, to Sir Alan Wood, Chair of the Residential Care Leadership Board, to Vicky Ford MP, Minister for Children, to Isabelle Trowler, the Chief Social Worker, and to Ofsted.

In his original ruling Mr Justice MacDonald became the fourth High Court judge this year to send 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.

In response a Department for Education spokesperson said at the time: “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.”