Judge hits out at lack of regulated placement for vulnerable, suicidal 16 year old, despite 11 High Court hearings and sending series of judgments to ministers

An exasperated High Court judge has sent a fourth judgment to ministers over the continuing unavailability of a regulated placement for a vulnerable 16 year old with multifaceted difficulties and at a high risk of serious self-harm or suicide.

In Lancashire County Council v G (No. 4)(Continuing Unavailability of Regulated Placement) [2021] EWHC 244 (Fam) Mr Justice MacDonald said [italics in original]: “At the beginning of my first judgment (see Lancashire CC v G (Unavailability of Secure Accommodation) [2020] EWHC 2828 (Fam)) I recalled the maxim that the measure of a society can be obtained from how that society treats its most vulnerable members, citing the formulation adopted by Nelson Mandela on 8 May 1995 that "there can be no keener revelation of a society's soul than the way in which it treats its children".

“Approaching six months on from the commencement of these proceedings under the inherent jurisdiction of the High Court on 28 August 2020, it is possible to apply this illuminating metric to our society by reference to the extent to which G's acute and complex emotional and behavioural needs have been met. The scales tip very heavily against us.”

The judge continued: “Nearly six months after the issue of proceedings, after eleven hearings before the Family Division of the High Court, after the repeated transmission of the judgments of this court to the Rt Hon Gavin Williamson CBE MP, Secretary of State for Education, Vicky Ford MP, Minister for Children and to Alex Chalk MP and after the expenditure of some £26,000 of public money G, a highly troubled and vulnerable young woman with multifaceted emotional and behavioural difficulties and at high risk of serious self-harm or suicide, still only has available to her a sub-optimal unregulated placement that all parties recognise is not equipped fully to meet her acute and complex emotional and behavioural needs and which the Children's Guardian remains unable to endorse as being in her best interests.”

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The judge said that within this context, he had – “again” – been asked by the local authority to authorise the continued deprivation of G's liberty in “what was always intended to be, and which remains six months after the institution of these proceedings, a temporary emergency placement designed to last 28 days pending the identification of a permanent, regulated placement that is able to meet G's highly complex needs”.

The judge said that whilst required by law to make his decision having undertaken a careful assessment of those welfare needs and by applying the lodestar that is the paramount nature of G's best interests, the reality was that he was again “reduced to little more than a rubber stamp” in circumstances where, as counsel for G submitted, the continuing lack of options before the court essentially obviated the court’s ability to apply the welfare test.

Mr Justice MacDonald concluded that in the circumstances he “once again and wearily” must authorise the continued deprivation of G in an unregulated placement that was not fully equipped to meet her complex needs by reason of the fact that he had no other option but to do so.

“I make clear that I consider that I can say that the placement is in G's best interests only because it is the sole option available to the court to prevent G causing herself serious and possibly fatal harm. Even then, it is clear that the placement is increasingly struggling to achieve even that limited goal. As has been the case each time this matter has come before me in the past number of months, I make the decision I do because I am left with no choice," he said.

The High Court judge added that he feared that it was increasingly easy to chart the likely course for G over the next number of weeks and months having regard to the evidence that was before the court if a regulated placement capable of meeting fully G's needs was not found.

“The professionals are increasingly concerned with respect to G's regular attempts to harm herself and for the continued viability of what is already an unsuitable placement for G. G continues to swallow dangerous objects and to tie ligatures around her neck. Within this context, whilst my judgments to date are comprised of the mournful accounts of the self-harming behaviour by which G expresses her acute and enduring emotional pain, I am increasingly worried that, absent a suitable placement being found, it will be the sad responsibility of this court to deliver a judgment that records with respect to G a greater tragedy still.”

Mr Justice MacDonald continued: “As a judge, I must assiduously avoid involving myself in matters that are properly the purview of Parliament. Likewise, the judicial role is not that of the polemicist. I have however, taken the judicial oath. In doing so (and as recalled by Sir James Munby P in a similar case in Re X (A Child)(No 3) [2017] EWHC 2036 (Fam)) I promised to do right by all manner of people according to the laws and usages of this realm. It is very hard, if not impossible, to do right by G, to keep her safe and to work to relieve her enduring and acute emotional pain, when the tools required to achieve that end are simply unavailable to this court.

“As I have commented in my previous judgments, this places the court in the invidious position of being required by the law of this realm to make decisions that hold G's best interests as the court's paramount consideration but being effectively disabled from doing so by an ongoing and acute lack of appropriate welfare provision for a constituency of the country's most needy, most vulnerable children.”

The judge once again directed that a copy of the judgment be sent to the Children's Commissioner for England; to the Secretary of State for Education; to the Chair of the Residential Care Leadership Board; to the Minister for Children; to the Chief Social Worker; and to Ofsted. He also directed that a copy of the judgment be sent forthwith to the Lord Chancellor and to the Parliamentary Under Secretary of State for Justice.

“The court has now received replies from Vicky Ford MP and from Ofsted in response to previous judgments sent to them. Whilst the court is, of course, grateful for those considered responses to the issues raised in the previous judgments in this case, those responses have not resulted in any appreciable improvement in G's situation,” he said.

In response to one of Mr Justice MacDonald's earlier rulings 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."

Last month the Government, when announcing the independent Review of Children’s Social Care, said it was due to respond to a consultation on unregulated provision, “where the views of the sector and care-experienced young people were sought on banning the placement of children under the age of 16 in this provision and introducing national standards for provision for 16 and 17-year-olds”.

Mr Justice MacDonald’s rulings in G’s case are part of a long line of judgments where judges have expressed concern at the lack of secure accommodation.

In January 2021 Mrs Justice Knowles also sent ministers a copy of her judgment in Q (A Child) (DOLS: Lack of Secure Placement) [2021] EWHC 123 concerning the lack of availability of a secure welfare placement for a 16 year old.

Last year saw - in addition to Mr Justice MacDonald's rulings in relation to G - the following: Z (A Child : DOLS: Lack of Secure Placement) [2020] EWHC 1827 (Mrs Justice Judd); Re S (Child in Care: Unregistered Placement) [2020] [EWHC] 1012 (Cobb J); and Dorset Council v E (Unregulated placement : Lack of secure placements) [2020] EWFC B17 (HHJ Dancey).

In November 2019 the Court of Appeal issued a ruling in B (Secure Accommodation Order), Re (Rev 1) [2019] 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, also expressed concern in Re T (A Child) (ALC Intervening) [2018] EWCA Civ 2136.

In 2017 the lack of appropriate placements for highly vulnerable children and adolescents was described by Sir James Munby as "disgraceful and utterly shaming" (see paragraph 37 of Re X (A Child) (No 3) [2017] EWHC 2036 (Fam)).

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