TOKYO —

The Nuffield Family Justice Observatory (Nuffield FJO) has released a significant article addressing the complex and evolving landscape surrounding the deprivation of liberty (DoL) for children and young people, particularly in the aftermath of the pivotal Re A (A Child) (Deprivation of Liberty) [2023] EWCA Civ 365 judgment, commonly known as the "Agni" case. This publication serves as a crucial resource for legal professionals, social workers, and policymakers grappling with the intricate legal framework and severe practical challenges involved in safeguarding vulnerable children whose liberty must be restricted for their own protection. The Nuffield FJO’s intervention underscores the urgent need for clarity, consistent application of the law, and systemic reform amidst a growing crisis of suitable placements for children with complex needs, often leading to their placement in unregulated settings that necessitate judicial authorisation for any deprivation of liberty.

The Escalating Crisis of Children’s Deprivation of Liberty

The deprivation of liberty for children and young people has emerged as one of the most pressing and concerning issues within the UK’s family justice system. It pertains to situations where a child, typically due to significant welfare needs, mental health issues, or risks of exploitation, is placed in an environment where their freedom of movement and autonomy are substantially restricted. Legally, the concept of deprivation of liberty is assessed against the "acid test" established in the Supreme Court case of P v Cheshire West and Chester Council [2014] UKSC 19, which asks whether a person is under continuous supervision and control and is not free to leave, and lacks the capacity to consent to these arrangements. While Cheshire West primarily concerned adults lacking mental capacity, its principles have been applied by analogy to children, necessitating judicial authorisation for any placement that amounts to a deprivation of their liberty, regardless of their capacity to consent, if it is not a routine restriction of parental control.

Over the past decade, the number of applications to the High Court seeking authorisation for the deprivation of liberty of children has skyrocketed. Data from various sources, including Cafcass and the Nuffield FJO’s own analyses, consistently illustrate this alarming trend. For instance, Nuffield FJO reports have highlighted a dramatic increase, with applications rising by hundreds of percentage points in recent years. This surge is largely attributable to a severe shortage of appropriate, regulated residential placements for children with highly complex needs, including those with severe mental health conditions, learning disabilities, or those at risk of criminal or sexual exploitation. As a result, local authorities are frequently compelled to place children in settings that are either unregistered, unregulated, or otherwise unsuitable, and which inevitably amount to a deprivation of their liberty. These placements often lack the therapeutic support, staffing levels, and regulatory oversight found in traditional children’s homes, raising significant safeguarding concerns. The children affected are disproportionately teenagers, often aged 15-17, and frequently have a history of trauma, neglect, or involvement with multiple agencies.

The "Agni" Judgment: A Defining Legal Precedent

The legal landscape governing the authorisation of deprivation of liberty for children underwent a significant re-evaluation with the Court of Appeal’s judgment in Re A (A Child) (Deprivation of Liberty) [2023] EWCA Civ 365, widely referred to as "Agni." This case provided crucial clarification regarding the respective jurisdictions of the High Court and the Family Court in authorising such arrangements.

Prior to Agni, there had been a degree of ambiguity and varied practice. While it was generally accepted that the High Court’s inherent jurisdiction was the primary route for authorising DoL for children, particularly in novel or complex situations, some practitioners sought to use the Family Court’s powers under Section 25 of the Children Act 1989 (which allows for secure accommodation orders) even for placements that were not registered secure accommodation. The Agni case brought this distinction into sharp focus.

Key Findings of the Agni Judgment:

  1. Inherent Jurisdiction is Paramount for Unregistered Placements: The Court of Appeal definitively ruled that the High Court’s inherent jurisdiction is the sole and proper route for authorising the deprivation of liberty of a child when that child is placed in a setting that is not registered as a children’s home, secure children’s home, or hospital under the relevant statutory frameworks. This includes "unregulated" or "unregistered" placements such as caravans, flats, or holiday lets that local authorities are increasingly using due to the lack of suitable alternatives.
  2. Limitations of Section 25, Children Act 1989: The judgment clarified that Section 25 of the Children Act 1989 can only be used to authorise placement in a registered secure children’s home. It cannot be invoked to authorise a deprivation of liberty in any other type of placement, even if that placement offers a secure environment. This distinction is critical because registered secure children’s homes are subject to stringent regulatory oversight and specific legal safeguards, which are absent in unregulated settings.
  3. Emphasis on Judicial Oversight: Agni reinforced the fundamental principle that any deprivation of a child’s liberty requires robust judicial oversight to ensure it is necessary, proportionate, and in the child’s best interests, and compliant with Article 5 of the European Convention on Human Rights (right to liberty and security). The court underscored the particular vulnerability of children in unregulated settings and the heightened need for judicial scrutiny.
  4. Practical Implications for Practitioners: The judgment highlighted the immediate practical challenge of the "placement crisis." While acknowledging the immense difficulties faced by local authorities, the court reiterated that these difficulties do not negate the legal requirement for proper authorisation. It placed a clear burden on local authorities to bring such applications to the High Court, even in emergency situations.

The Agni judgment, delivered in March 2023, sent ripples through the family justice system. It clarified the law but simultaneously amplified the operational pressures on local authorities and the High Court. Practitioners faced immediate questions regarding existing orders made under Section 25 for unregulated placements and the increased volume of applications that would now need to be channeled through the High Court.

The Nuffield FJO’s Response and Article Content

In this complex and rapidly evolving environment, the Nuffield Family Justice Observatory has stepped forward with its new article to provide much-needed guidance and analysis. The Nuffield FJO is an independent body dedicated to improving the family justice system for children and families in England and Wales. It achieves this by bringing together data, research, and practice expertise to provide evidence-based insights and practical tools. Its mission is particularly crucial in areas of significant legal and social challenge, such as children’s deprivation of liberty.

The Nuffield FJO’s article, published in the wake of the Agni judgment, is expected to cover several critical areas:

Nuffield FJO publish article on Deprivation of liberty and children and young people after Agni – Family Law Week
  • Detailed Analysis of Agni: Providing a comprehensive breakdown of the judgment’s legal reasoning, its implications for jurisdiction, and its impact on ongoing and future DoL applications. This includes explaining why the Court of Appeal arrived at its conclusions and what these mean for the interpretation of statutory powers versus inherent jurisdiction.
  • Practical Guidance for Professionals: Offering clear, actionable advice for local authorities, social workers, and legal practitioners. This guidance likely addresses:
    • Identifying DoL: How to accurately assess whether a placement constitutes a deprivation of liberty under the "acid test."
    • Jurisdictional Pathways: Navigating whether to apply to the Family Court (for registered secure accommodation) or the High Court (for all other DoL placements).
    • Application Process: Step-by-step advice on preparing and submitting DoL applications, including necessary evidence and documentation.
    • Emergency Procedures: Guidance on handling urgent cases where immediate DoL authorisation is required, balancing legal requirements with child protection needs.
    • Review and Oversight: Best practices for ongoing monitoring and review of DoL orders to ensure they remain necessary and proportionate.
  • Identifying Systemic Challenges: Beyond legal clarification, the article is expected to delve into the underlying systemic issues contributing to the DoL crisis. This would include the shortage of appropriate placements, funding pressures on local authorities, and the increasing complexity of children’s needs.
  • Recommendations for Policy and Practice: The Nuffield FJO often uses its research to advocate for broader systemic change. The article is likely to include recommendations for government policy, legislative reform, and improved inter-agency collaboration to address the root causes of the DoL crisis and ensure better outcomes for children. These recommendations might include calls for increased investment in regulated placements, development of alternative models of care, and clearer national guidance.

Chronology of Key Developments

Understanding the timeline of events provides essential context for the Nuffield FJO’s publication:

  • 2014: The Supreme Court judgment in P v Cheshire West and Chester Council establishes the "acid test" for deprivation of liberty, which subsequently informs its application to children.
  • 2015-2022: A period of significant growth in DoL applications for children, driven by increasing complexity of needs and a critical shortage of suitable regulated placements. Local authorities increasingly rely on unregistered or unregulated settings, leading to a surge in inherent jurisdiction applications to the High Court.
  • Late 2022: The Re A (A Child) (Deprivation of Liberty) case is heard by the Court of Appeal, addressing the specific jurisdictional questions around Section 25 Children Act 1989 and inherent jurisdiction for unregulated placements.
  • March 2023: The Court of Appeal delivers its judgment in Re A (A Child) (Deprivation of Liberty), clarifying that only the High Court can authorise DoL in unregistered settings. This decision has immediate and profound implications for practitioners and the courts.
  • April 2023 onwards: The family justice system begins to adapt to the Agni judgment, facing increased applications to the High Court and a heightened awareness of the legal distinctions. The Nuffield FJO initiates or accelerates its work to synthesize these developments and produce guidance.
  • Current Publication: The Nuffield FJO releases its article, providing timely analysis and practical support to professionals operating within this challenging legal and practical landscape.

Broader Impact and Implications

The Nuffield FJO’s article, built upon the foundation laid by the Agni judgment, has far-reaching implications across the family justice system:

Legal and Judicial Implications

The clarification provided by Agni, and elaborated upon by Nuffield FJO, reduces legal ambiguity, ensuring that applications for DoL are directed to the correct judicial forum. However, this has significantly increased the workload on the High Court, which already operates under considerable pressure. There is a continuous debate among legal professionals regarding the need for legislative reform to provide a clearer, more streamlined statutory framework for authorising DoL for children, akin to the Deprivation of Liberty Safeguards (DoLS) for adults, but tailored to the specific needs and developmental stage of children. The current reliance on inherent jurisdiction, while robust, is resource-intensive and often reactive.

Safeguarding and Welfare Concerns

The core purpose of judicial authorisation for DoL is safeguarding. By ensuring that all deprivations of liberty in unregulated settings are overseen by the High Court, the Agni judgment, and subsequently the Nuffield FJO’s guidance, aim to strengthen protections for children. However, the underlying issue of the lack of suitable placements persists. Children placed in unregistered settings may experience poorer quality care, reduced access to education and therapeutic services, and increased risk of harm, precisely because these settings fall outside the usual regulatory framework designed to ensure quality and safety. The article will likely highlight that legal compliance alone does not resolve the welfare crisis.

Resource and Funding Pressures

Local authorities face immense financial pressure to find appropriate placements for children with complex needs. The costs associated with securing High Court orders, combined with the exorbitant fees for emergency, unregulated placements, strain already stretched budgets. The Nuffield FJO’s work often highlights the economic realities underpinning legal challenges, and this article will implicitly or explicitly underscore the need for greater investment in the children’s social care system to alleviate the "placement crisis" and reduce the reliance on costly and suboptimal solutions.

Children’s Rights and Human Rights

At the heart of this issue are the fundamental human rights of children, particularly their right to liberty under Article 5 ECHR. Any deprivation of liberty must be lawful, necessary, and proportionate. The Nuffield FJO’s article reinforces the importance of upholding these rights even in the most challenging circumstances. It serves as a reminder that restrictions on a child’s freedom, while sometimes necessary for their safety, must be subject to the highest level of scrutiny and should always be accompanied by efforts to ensure the least restrictive environment possible and a clear pathway to regaining autonomy.

Reactions and Stakeholder Perspectives

While specific statements from all parties are not available, the publication of such an article by the Nuffield FJO naturally elicits anticipated reactions from key stakeholders:

  • Nuffield Family Justice Observatory: Would undoubtedly emphasize the critical nature of the article in bringing clarity to a complex area of law and practice. A spokesperson might state, "Our goal is to equip practitioners with the knowledge and tools needed to navigate the legal complexities post-Agni, ensuring that children’s liberty is only restricted when absolutely necessary and always with robust judicial oversight. This article is part of our broader commitment to advocate for systemic changes that address the root causes of the placement crisis."
  • Legal Professionals (Barristers, Solicitors): Would likely welcome the Nuffield FJO’s detailed analysis. A family law solicitor might comment, "The Agni judgment created a seismic shift, and guidance like this from the Nuffield FJO is invaluable. It helps us to advise local authorities correctly and ensures consistency in how these critical applications are handled, ultimately benefiting the children we represent."
  • Local Authorities and Social Workers: While welcoming the practical guidance, they would also likely reiterate the immense pressures they face. A director of children’s services might say, "We appreciate the clarity the Nuffield FJO provides, but the fundamental challenge remains: there are simply not enough suitable, regulated placements for our most vulnerable children. We need systemic solutions and greater investment, not just clearer legal pathways for inadequate options."
  • Children’s Rights Advocates: Would stress that while legal clarity is important, the focus must remain on the child’s welfare and the impact of DoL on their development. An advocate might state, "Every deprivation of a child’s liberty is a serious matter. This article highlights the ongoing need to challenge the reasons why children are deprived of their liberty in the first place, and to ensure their voices are heard throughout the process."
  • The Judiciary: Judges would likely acknowledge the value of such resources in promoting consistent and lawful practice across the courts, particularly in the High Court, which now carries a heavier burden of these applications.

Conclusion

The publication of the Nuffield FJO’s article on the deprivation of liberty for children and young people after Agni is a timely and essential contribution to the family justice discourse. It navigates the intricate legal developments stemming from the Agni judgment, providing critical clarity and practical guidance for professionals working at the frontline of child protection. While the article aims to streamline legal processes and enhance safeguarding, it also implicitly underscores the profound systemic challenges plaguing the children’s social care sector, particularly the chronic shortage of suitable placements for children with complex needs.

As the family justice system continues to grapple with these multifaceted issues, the Nuffield FJO’s evidence-based approach and commitment to improving outcomes for children remain indispensable. The article serves not only as a guide for immediate practice but also as a catalyst for ongoing dialogue and calls for comprehensive reform. Protecting the liberty and welfare of vulnerable children requires not only robust legal frameworks and diligent application of the law but also a concerted, collaborative effort to address the underlying societal and resource deficits that too often lead to children being deprived of their freedom in settings ill-equipped to meet their needs. The work initiated by the Agni judgment and further elucidated by the Nuffield FJO marks a critical juncture in this ongoing endeavor.