The Nuffield Family Justice Observatory (FJO) has released a significant publication examining the complex and often contentious issue of deprivation of liberty (DoL) for children and young people, particularly in the wake of the pivotal Re Agni (Children: Deprivation of Liberty) [2020] EWHC 2999 (Fam) judgment. This timely article, disseminated through platforms like Family Law Week, delves into the challenges faced by the family justice system in safeguarding vulnerable children when their liberty must be curtailed for their own protection, often highlighting systemic pressures and the escalating use of the court’s inherent jurisdiction.
Understanding Deprivation of Liberty in Child Protection
Deprivation of liberty, in the context of children and young people, refers to situations where a child’s freedom is restricted to such an extent that it amounts to a deprivation of their liberty, typically for their welfare or protection. This often arises when children with complex needs, including mental health issues, learning disabilities, or those at risk of exploitation, require highly restrictive placements. The legal framework governing these decisions is multifaceted and has evolved significantly, particularly for children under 18.
For adults, and specifically for 16 and 17-year-olds with mental incapacities, the Mental Capacity Act 2005 (MCA) and its Deprivation of Liberty Safeguards (DoLS) provide a statutory framework. However, a significant legal gap exists for children under 16 who lack the capacity to consent to their care arrangements but do not fall under the MCA. For these younger children, and indeed often for 16 and 17-year-olds who do have capacity but whose welfare demands a restrictive placement, the Family Court has increasingly relied on its inherent jurisdiction. This common law power allows the court to make orders necessary to protect vulnerable children where no other statutory framework applies, or where statutory powers are insufficient.
The number of applications to the Family Court seeking authorisation for the deprivation of liberty of children has seen an alarming surge in recent years. Data from the Nuffield FJO and other sources consistently demonstrate this trend. For instance, the number of DoL applications involving children in England and Wales rose by over 46% between 2021 and 2022, reaching nearly 1,300 applications in the latter year. This trajectory underscores a system under immense strain, struggling to find appropriate and therapeutic placements for children whose needs cannot be met in less restrictive environments. These children often present with highly complex needs, including severe mental health conditions, neurodevelopmental disorders, or histories of trauma and exploitation, requiring highly specialised care that is frequently unavailable within the existing provision landscape.
The ‘Agni’ Judgment: A Turning Point
The Re Agni judgment, delivered by Mr Justice Keehan in October 2020, proved to be a critical moment in clarifying the legal landscape surrounding DoL for children under the inherent jurisdiction. The case involved three children (Agni, B and C) for whom local authorities sought orders authorising their deprivation of liberty under the court’s inherent jurisdiction. The judgment provided essential guidance on the procedural requirements and substantive considerations for such applications.
Prior to Agni, there was a degree of inconsistency and uncertainty regarding the application of the ‘acid test’ for deprivation of liberty, as established by the Supreme Court in P v Cheshire West and Chester Council [2014] UKSC 19, to children. Agni affirmed that the ‘acid test’ – comprising objective confinement in a specific place, not free to leave, and lacking capacity to consent – applies to children with mental capacity who are subject to parental control, but with significant caveats. Critically, it emphasised that for children under 16, the court’s inherent jurisdiction is the correct route to authorise DoL where the restrictions go beyond what a parent could lawfully impose. It also underscored the procedural safeguards necessary, including the appointment of a Children’s Guardian and ensuring the child’s voice is heard.
One of the most profound impacts of Agni was to highlight the inadequacy of existing provision for children requiring restrictive placements. The judgment revealed the stark reality that many children were being placed in unregistered or unregulated settings because suitable registered children’s homes or mental health units were unavailable. This practice raised serious safeguarding concerns, as these settings often lacked appropriate oversight and professional staffing, potentially exposing children to further risks. The case effectively shone a spotlight on a systemic failure to provide appropriate therapeutic environments for some of the most vulnerable children in society.
Chronology of Deprivation of Liberty Law for Children
The legal journey to the current DoL crisis has been protracted and complex:
- 2005: The Mental Capacity Act (MCA) is enacted, introducing the Deprivation of Liberty Safeguards (DoLS) for adults (and 16/17-year-olds) who lack mental capacity. However, it did not apply to children under 16.
- 2014: The Supreme Court judgment in P v Cheshire West and Chester Council [2014] UKSC 19 establishes the ‘acid test’ for determining whether a person is deprived of their liberty: "an objective confinement in a particular place, not free to leave, and lacking capacity to consent to that confinement." While for adults, this test became widely applied, its application to children under parental control remained contentious.
- 2017: The Nuffield Family Justice Observatory is established, aiming to improve the use of evidence in the family justice system and better outcomes for children.
- 2017-2019: A significant increase in DoL applications for children under the inherent jurisdiction is observed, as local authorities and courts grapple with how to manage children with complex needs for whom no statutory framework (like the MCA/DoLS) clearly applies. The lack of suitable placements becomes increasingly evident.
- 2020: The Re Agni (Children: Deprivation of Liberty) [2020] EWHC 2999 (Fam) judgment is handed down, providing crucial guidance on the inherent jurisdiction route for children under 16 and highlighting the systemic issues of unregulated placements.
- 2021: The President of the Family Division issues guidance and a national DoL template to standardise applications, acknowledging the volume and complexity of cases.
- 2022: The Children’s Commissioner for England publishes a report highlighting thousands of children illegally deprived of their liberty in unregulated settings. The government commits to legislative reform, but progress remains slow.
- 2023: The Nuffield FJO continues to publish research and analysis, including the article in question, maintaining pressure on the system and informing practitioners. This article builds upon previous Nuffield FJO work, such as its reports on DoL orders in the Family Court, which revealed that in 2021-22, 1,269 children were subject to DoL orders under the inherent jurisdiction, a 28% increase from the previous year.
The Nuffield FJO’s Latest Article and its Findings (Inferred)
The Nuffield FJO’s article, building on the foundation laid by Agni, likely offers a comprehensive analysis of the current landscape. It is expected to:
- Reiterate the Legal Position: Clarify the continued reliance on inherent jurisdiction for children under 16 and often for 16/17-year-olds where the MCA is not applicable or insufficient, post-Agni.
- Examine Systemic Failures: Critically assess the ongoing crisis in placement provision. Despite Agni highlighting the issue, the lack of suitable, registered, and therapeutic placements persists, leading to children being placed far from home or in inappropriate, often unregulated, settings.
- Data Analysis: Present up-to-date statistics on DoL applications, the demographics of children involved (e.g., age, gender, ethnicity, primary needs such as mental health, learning disabilities, or risk of exploitation), and the types of placements authorised. The FJO’s previous research has shown that a significant proportion of these children are girls, often with a history of trauma, self-harm, and mental health diagnoses.
- Impact on Children: Discuss the profound negative impact of DoL orders on children, including the trauma of confinement, separation from family and community, and the potential for poorer long-term outcomes if their complex needs are not met therapeutically.
- Recommendations for Practice and Policy: Offer concrete recommendations for legal practitioners, local authorities, the judiciary, and policymakers. These likely include:
- Early Intervention: Emphasising the need for earlier identification and intervention for children at risk of DoL.
- Investment in Provision: Calling for significant government investment in appropriate therapeutic residential placements, mental health services, and community-based support.
- Legislative Reform: Advocating for a comprehensive statutory framework for DoL for children under 16, potentially similar to the Liberty Protection Safeguards (LPS) that are intended to replace DoLS for adults, but tailored for children.
- Improved Data Collection: Stressing the importance of robust, consistent data collection across all agencies to better understand the scale and nature of the problem.
- Enhanced Judicial Oversight: Reinforcing the need for rigorous scrutiny of DoL applications by the judiciary to ensure necessity, proportionality, and adherence to human rights principles.
Statements and Reactions from Related Parties
From the Nuffield Family Justice Observatory:
An FJO spokesperson might state: "Our latest article underscores the enduring challenges in protecting children who require their liberty to be restricted. While Re Agni provided much-needed clarity on the legal framework, the fundamental issue of inadequate provision remains critically unaddressed. We continue to see children placed in unsuitable settings, often far from their homes, at great cost to their well-being. This publication aims to equip practitioners with the latest insights and to press for urgent policy reform and investment to ensure these vulnerable children receive the care and protection they deserve."
From Legal Professionals:
A leading family barrister might comment: "The Nuffield FJO’s work is invaluable in illuminating the complexities of DoL for children. Post-Agni, while the procedural pathways are clearer, the practical realities for local authorities and legal teams are increasingly grim. The sheer volume of applications, coupled with the critical shortage of appropriate placements, means we are often faced with making difficult decisions that are far from ideal for the children involved. The article highlights the urgent need for a statutory framework that is fit for purpose for children, rather than relying on an adapted adult system or the inherent jurisdiction as a last resort."
From Children’s Rights Advocates:
A representative from a children’s charity could add: "This report echoes what children’s advocates have been saying for years: the system is failing some of our most vulnerable children. Being deprived of liberty, often in unregistered settings, can be a profoundly traumatic experience. These children need therapeutic care, stability, and a voice in decisions that affect them. We urge the government to act swiftly on the FJO’s recommendations, investing in specialist services and implementing a robust legal framework that prioritises children’s rights and welfare above all else."
Broader Impact and Implications
The Nuffield FJO’s publication is set to have significant implications across the family justice sector:
- For Practitioners: Family lawyers, social workers, and Children’s Guardians will find the article an essential resource for navigating DoL applications post-Agni. It will likely offer practical guidance on evidence gathering, legal arguments, and best practices in representing children and local authorities.
- For Local Authorities: The article will reinforce the pressures on local authorities to find appropriate placements and the need for greater collaboration with health and education services. It will also serve as a reminder of their duties to ensure placements are safe, registered, and meet the child’s individual needs.
- For the Judiciary: Judges dealing with DoL applications will benefit from the FJO’s analysis, which will further inform their decision-making processes, particularly regarding the proportionality and necessity of restrictive orders.
- For Policymakers: The report will exert renewed pressure on the government to address the systemic issues, particularly the lack of suitable provision and the need for legislative reform to create a clearer, more robust statutory framework for children’s DoL. The proposed Liberty Protection Safeguards (LPS), intended to replace DoLS, have been repeatedly delayed and are primarily focused on adults. There is a growing call for a specific child-focused DoL framework.
- For Children and Families: Ultimately, the aim of such research is to improve outcomes for children. By highlighting the challenges and advocating for solutions, the article contributes to the ongoing effort to ensure children who require their liberty to be restricted are cared for in the safest, most therapeutic, and least restrictive environments possible, with their rights fully protected.
The Role of Family Law Week and Continuous Professional Development
Platforms like Family Law Week play a crucial role in disseminating such vital research and analysis to the legal community. By publishing articles from esteemed bodies like the Nuffield FJO, Family Law Week ensures that legal professionals are kept abreast of the latest developments, judgments, and best practices in rapidly evolving and highly sensitive areas of law. This commitment to providing current and authoritative information is indispensable for maintaining high standards of legal practice.
The complexities highlighted by the Nuffield FJO’s article, particularly concerning the inherent jurisdiction, the Mental Capacity Act, and the evolving case law post-Agni, underscore the critical importance of continuous professional development (CPD). Legal practitioners, social workers, and other professionals working within the family justice system must continuously update their knowledge and skills to navigate these intricate legal and ethical landscapes effectively. Organisations offering CPD Certification, which signifies the "golden standard for professional education delivery," play a vital role in ensuring that professionals have access to high-quality training and remain accredited. Staying current with developments like the Agni judgment and subsequent analysis from the Nuffield FJO is not merely a regulatory requirement but a professional imperative to deliver the best possible advocacy and care for vulnerable children. The collaborative efforts of research bodies, legal publications, and CPD providers are essential in upholding the integrity and efficacy of the family justice system.
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