In September 2021, the Government removed the lawful basis for a local authority to place a ‘looked after’ child under 16 years old in a setting in England that meets the definition of a children’s home but that has not been registered as a children’s home with Ofsted.
However, the ongoing national shortage in registered children’s homes means that local authorities are continuing to have to place children in unregistered settings without lawful basis.
In addition to the potential welfare issues associated with this, the situation has also thrown up some legal difficulties for social workers, local authorities and the Court. In particular, the High Court is regularly being asked to authorise the deprivation of a child’s liberty in an unregistered setting.
This article provides some guidance for local authorities on how to best ensure a deprivation of liberty can be made lawful. It’s important to note that this will not remedy the fact that the local authority has no lawful basis to place a child under 16 years in such a setting; nor will it remedy the unlawfulness of the placement due to its lack of registration. However, it will ensure that the child’s fundamental human rights under Article 5 (right to liberty) are lawfully authorised.
Can the High Court authorise a deprivation of liberty in an unregistered setting?
In short, the answer is yes; the High Court has confirmed that it can authorise, under its inherent jurisdiction, the deprivation of liberty of a child under 16 in a placement that has not yet been registered with Ofsted. In making this decision the High Court will need to consider whether the authorisation is of ‘imperative necessity’ when undertaking its best interests analysis to determine the application.
Although each case will turn on its facts, the guidance from the High Court is that, in the absence of conditions of ‘imperative necessity’, it will be difficult for the High Court to conclude that a deprivation of liberty in an unregistered setting is in the child’s best interests.
Unhelpfully the High Court has not defined what would constitute circumstances of ‘imperative necessity’; however, it is likely the High Court would need to be satisfied that there were no alternative available options for the child and that a thorough search and commissioning exercise had been undertaken to identify other potential options.
Guidance on Practical Steps to Take
With the above in mind, there are several practical steps that the local authority should take when making an application to the High Court to authorise a deprivation of liberty for a child under 16 in an unregistered children’s home.
In summary, the local authority should:
- Undertake a thorough and detailed commissioning exercise to identify all possible options for the child.
- Consider whether there is a setting that the child could lawfully be placed in – for example with a local authority foster parent, in a care home, in a registered family centre, in a school or in a residential holiday scheme for disabled children. Unless the child requires treatment, it is unlikely that a placement in a hospital would be considered.
- Involve key stakeholders in the child’s care at an early stage, (for example, the local CAMHS service and the child’s legal Guardian where relevant). Opening this dialogue as early as possible may not only assist with identifying other potential options but it will ensure good communication between the different public bodies and persons ensuring all are aware of and able to contribute to decision making.
- Immediately make enquiries with Ofsted (which holds a list of registered children’s homes) once options have been identified to enquire whether a placement is registered (if required).
- Make the High Court explicitly aware of the registration status of the placement and of the steps it is taking to ensure the setting is safe and suitable for the child.
- Set out why other potential placements are not suitable, not viable or not in the child’s best interests.
- Set out why the proposed placement, notwithstanding its unlawful and unregistered status, is in the child’s best interests, necessary and proportionate.
- Where required, ensure steps are taken to register the placement with Ofsted and set out to the High Court how it plans to monitor the placement in the interim to ensure it is safe and suitable for the child.
- Notify Ofsted immediately of the placement.
Although following the above steps will not provide a lawful basis for the placement under the 2021 Regulations (nor, pending registration with Ofsted, provide a lawful basis for the placement due to the lack of registration, lawful), it will make it more likely that the High Court will authorise any deprivation of liberty in the placement thereby making the deprivation of the child’s liberty lawful.
Although it may have the power to do so, we are not aware to date of Ofsted pursuing prosecution in any instance where a deprivation of liberty has been authorised by the High Court.
The above steps will also mitigate the risk of a successful judicial review against the local authority for placing the child absent lawful basis as, if the local authority has followed these steps, it should be able to demonstrate a reasonable and rational decision.
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 Where the child is under a care order or accommodated by the local authority under the Children Act 1989