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Professionals working with child in deprivation of liberty cases need to have clear and comprehensive understanding of operational procedures of other agencies, says High Court judge

A Family Division judge has strongly criticised the lack of therapeutic care within a restrictive environment for young people who need this.

Mr Justice Macdonald said in a case involving Blackpool Borough Council and Lancashire and South Cumbria NHS Foundation Trust, as an intervener, that the bodies involved should work together more closely.

The case of Blackpool Borough Council v HT (A Minor) & Ors [2022] EWHC 1480 (Fam) was concerned with the welfare of HT, a girl aged 17, who was subject to a deprivation of liberty safeguards order made following an application by the council.

Macdonald J said: “The background to this matter will be depressingly familiar to those who are involved with proceedings concerning the deprivation of a child's liberty.”

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HT was placed on remand at a secure children's home after numerous incidents of behavioural problems including “a significant criminal record” with offences of robbery, possession of an offensive weapon and common assault.

After being released she made a suicide attempt and was again detained under s.2 of the Mental Health Act 1983.

In June 2021 she was admitted to an adult psychiatric intensive care unit (PICU) bed as no Tier 4 children and adolescent mental health services (CAMHS) PICU beds were available nationally and her risk to others could not be properly contained on a general adolescent ward.

HT was discharged from detention under s.2 of the Mental Health Act 1983 and placed by Blackpool in an unregistered placement run by a private company while a registered placement was sought.

Macdonald J said: “That search, which has encompassed the entire country and has included secure accommodation provision, has proved fruitless and continues to do so.”

Despite concerns about the placement, the judge said: “It is in HT's best interests to authorise, for a further short period, the restrictions that amount to a deprivation of her liberty within her current placement”.

The placement was sub-optimal, but “it is at least keeping her safe in the broadest sense of the word”.

Turning to the shortage of suitable accommodation, Macdonald J said: “This matter represents another example, amongst many examples, of a case in which the acute lack of appropriate resources, for children assessed as not meeting the relevant criteria for detention under ss2 or 3 of the Mental Health Act 1983 but requiring therapeutic care within a restrictive environment for acute behavioural and emotional issues arising from past trauma, creates tension between local authorities and the NHS.

“As a result, the matter comes before the court with the local authority asserting that the NHS should be making provision for the child and the NHS arguing that the child does not meet the criteria for such provision.”

He said there was a need for agencies to work co-operatively to ensure that the correct provision for the subject child is achieved. Local authorities should bear in mind that the process of obtaining a Tier 4 CAMHS inpatient bed “is not simply dependent on the views of two qualified medical practitioners, but is also subject to an access assessment, at which stage Tier 4 CAMHS provision may be deemed inappropriate, notwithstanding that the application for assessment has been certified those medical practitioners.”

The scope for the court to intercede in such decisions was extremely limited and so “it is important that professionals working with the subject child have a clear and comprehensive understanding of the operational procedures of other agencies involved with that child”.

Mark Smulian

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