Cheshire East

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High Court judge refuses to "apply a rubber stamp" to authorise deprivation of liberty of child in hospital

A High Court judge has refused to give “a spurious veneer of lawfulness” to the detention of a child in hospital by making a deprivation of liberty safeguards (DOLS) order.

Mr Justice Holman also strongly criticised the lack of places where severely troubled children can be cared for, which he called “scandalous”.

The case of A County Council v A Mother & Ors (Refusal to make a DOLS order) [2021] EWHC 3303 (Fam) concerned an unnamed county council. Describing the circumstances, Holman J said a deeply troubled girl aged almost 14 and a half had been in local authority care since January 2014, and “there is absolutely no doubt on the evidence in this case that the criteria under section 25 of the Children Act 1989 for making a secure accommodation order are satisfied”. 

The local authority had though been unable to find suitable regulated premises for her, which meant such an order could not be made and it had instead applied for a DOLS order “in a way that has, frankly, become far too frequent in recent years”, the judge said.

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Holman J had earlier made a short term DOLS order, but declined to renew it.

He explained: “I wish, however, to make very clear indeed at the outset that I perfectly understand the acute difficulty that the local authority face in the present case and I am, frankly, very sympathetic to them.   

“The fact of the matter is that there is a grave, and now scandalous, shortage of suitable establishments in this country where very troubled children such as this child can be kept safe whilst respecting their dignity and, so far as possible, their liberties. 

“However, it needs clearly to be understood by this local authority, and by all local authorities, that the court itself does not have any resources at all available to it, nor a cheque book."

The judge added: “I cannot myself find or create any solution in this case; but I am, frankly, not prepared simply to rubber stamp what the local authority and the other parties all know to be an unlawful situation at the moment in the present case.”

A foster placement for the child had succeeded for six years, but broke down in March 2021 and she later moved to a residential home where she was self-harming.

This led to her admission to hospital in September 2021 during which the residential home gave notice it would not have her back. 

She has absconded from the hospital and been returned by police, and on at least one occasion in handcuffs.

There have also been further cases of self-harm and of her conduct causing distress to other children on the ward.

The judge said this impasse meant “the blunt position of the local authority is that they simply have no solution at all with which to provide and care for this child. 

“As I have said, I am sympathetic to the dilemma of the local authority, but the fallacy in so many of these DOLS applications is some sort of misguided or desperate belief that, somehow, the court can provide that which the local authority themselves cannot provide. 

“So the position of the local authority today is simply that she must continue to remain where she is in this paediatric unit of a general hospital and that I, the court, must give some spurious veneer of lawfulness to that by the rubber stamp of making a DOLS order.”

He noted the opinion of a senior figure at the hospital “who daily witnesses these events, that her continuing detention in this hospital and the restrictions that they are having to impose upon her are not only ‘not in her best interests’ but are positively ‘damaging for her and her future’. The position of the hospital is, bluntly, that it has reached the end of the road.”

Holman J said: “I do not have a solution to this case.  Clearly, it is the duty of the local authority to whose care this child was entrusted over seven years ago to keep her safe.  

“Provided they act in good faith and do the very best they can, the lawfulness of what they do may be justifiable by a doctrine of necessity. I make crystal clear, as I have done many times during the course of this hearing, that I am not in any way whatsoever indicating to the hospital trust that it must now discharge this child, still less ordering it to do so. It must make its own decisions. If it does decide to keep her longer, then it also may be able to justify such a decision by a doctrine of necessity.”

He said the local authority could later apply for a DOLS-type order “if and when they have made proper arrangements for this child which they can demonstrate to the court are objectively in her best interests”.

Mark Smulian

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