TOKYO —

The Nuffield Family Justice Observatory (Nuffield FJO) has released a significant new article examining the complex and rapidly evolving landscape of deprivation of liberty (DoL) orders for children and young people in England and Wales, with a particular focus on the aftermath of the pivotal Re Agni judgment. This publication underscores the urgent need for systemic reform and a more robust national strategy to address the escalating number of children experiencing state-sanctioned confinement, often in unsuitable or unregistered settings, highlighting critical concerns for child welfare, human rights, and the immense pressure on the family justice system.

Understanding the Deprivation of Liberty Framework for Children

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 under Article 5 of the European Convention on Human Rights (ECHR). This typically involves confinement to a specific place (such as a residential children’s home, hospital, or even a foster placement), where they are not free to leave, are under continuous supervision and control, and where the deprivation is imputable to the state. Unlike adults, for whom the Mental Capacity Act 2005 (MCA) and its Deprivation of Liberty Safeguards (DoLS) apply (for those aged 16 and over lacking capacity), there has historically been no specific statutory framework for authorising the deprivation of liberty of children under the age of 16 who do not have the capacity to make decisions about their care and residence. This lacuna created what was widely known as the "Bournewood Gap," a significant legal and ethical challenge.

For children under 16, and often for those aged 16 and 17 where the MCA does not apply or is deemed insufficient, the High Court has increasingly relied upon its inherent jurisdiction to authorise such deprivations. This jurisdiction is a residual power of the High Court to ensure justice and protect vulnerable individuals, particularly children, where no other statutory power exists. Over recent years, the use of this inherent jurisdiction for DoL applications for children has surged dramatically, reflecting a growing crisis in the provision of suitable care placements for children with complex needs, including severe mental health issues, learning disabilities, and profound behavioural challenges often stemming from trauma.

The Genesis of the Crisis: Unregistered Placements and Systemic Failures

The escalating number of DoL applications is intrinsically linked to a critical shortage of appropriate, regulated placements for children in the care system. Local authorities often struggle to find suitable homes for children with highly complex needs, leading them to place children in settings that are not registered with regulatory bodies like Ofsted or the Care Quality Commission (CQC). These unregistered placements, often former residential homes, hotels, or even caravans, frequently lack the specialist staff, therapeutic environments, and oversight necessary to meet the children’s needs effectively. Such placements raise significant safeguarding concerns and often necessitate court orders to legalise the deprivation of liberty occurring within them, as children in these settings are effectively detained without statutory authority.

The geographical dispersal of these children is another critical issue. Many are placed far from their home areas, isolating them from family, friends, and established support networks, exacerbating their feelings of abandonment and contributing to poorer outcomes. This "out-of-area" placement trend is a direct consequence of the lack of local provision, forcing local authorities to search nationally for any available bed, regardless of its suitability or proximity.

The Landmark Re Agni Judgment (2020) and its Aftermath

The legal landscape concerning DoL for children was significantly shaped by the Court of Appeal’s judgment in Re Agni (Children: Deprivation of Liberty) [2020] EWCA Civ 1561. This landmark case involved a 15-year-old girl with complex needs who was placed in an unregistered residential setting. The judgment addressed the legality of authorising deprivation of liberty in such unregistered or unregulated settings using the High Court’s inherent jurisdiction.

Prior to Agni, there was considerable debate and uncertainty regarding the extent to which the inherent jurisdiction could be used to authorise placements in settings that did not meet regulatory standards. The Court of Appeal, in Re Agni, affirmed that the High Court could indeed use its inherent jurisdiction to authorise the deprivation of liberty of children under 16 in unregistered placements. This decision, while providing a legal pathway for local authorities and the courts to manage challenging situations, was not without controversy. It effectively legitimised a practice born out of systemic failure – the placement of highly vulnerable children in settings that fall outside the normal regulatory framework.

The judgment, delivered by Lady Justice King, emphasized that while such placements were "highly undesirable," the court’s primary duty was to protect the child’s best interests. In circumstances where no registered or suitable alternative was available, authorising a placement in an unregistered setting, with specific safeguards, might be the least detrimental option. This ruling placed a heavy burden on the High Court, which found itself in the unenviable position of approving arrangements that, in an ideal world, would be considered substandard, simply because no better alternative existed. Post-Agni, the number of DoL applications continued to climb, transforming what was once an exceptional measure into a routine aspect of the family court’s workload.

The Nuffield FJO’s Crucial Research and Findings

Nuffield FJO publish article on Deprivation of liberty and children and young people after Agni – Family Law Week

The Nuffield Family Justice Observatory, dedicated to improving the family justice system for children and families through better evidence and data, embarked on its research to thoroughly examine the implications of the Re Agni judgment and the broader phenomenon of DoL for children. Their recently published article consolidates and analyses existing data, legal developments, and practical challenges faced by professionals, families, and children themselves.

The Nuffield FJO’s work highlights several critical findings:

  1. Explosive Growth in Applications: The article confirms the exponential increase in DoL applications. Data from Cafcass (Children and Family Court Advisory and Support Service) indicates a staggering rise, from just a few hundred applications annually in the mid-2010s to over 2,000 in recent years. This surge places immense pressure on court resources, social workers, and legal aid.
  2. Profile of Children Affected: The majority of children subject to DoL orders are adolescents, often aged 14-17, presenting with complex and overlapping needs, including mental health conditions (such as severe anxiety, depression, self-harming behaviours), autism spectrum disorder, learning disabilities, and significant trauma histories, often linked to neglect, abuse, or exploitation.
  3. Prevalence of Unregistered Placements: A substantial proportion of DoL orders relate to children placed in unregistered settings, confirming the systemic failure to provide regulated and therapeutically appropriate environments. These placements are often secured at exorbitant costs, yet frequently fail to meet the complex needs of the children, leading to further instability and placement breakdowns.
  4. Geographical Disparity and "Postcode Lottery": The article identifies significant regional variations in the use of DoL orders and the availability of placements, creating a "postcode lottery" where a child’s access to appropriate care is determined by their local authority’s resources and commissioning strategies. Children are disproportionately moved far from their home areas, disrupting education, family ties, and community connections.
  5. Impact on Children’s Rights and Welfare: The research underscores the profound impact of DoL on children’s fundamental human rights, including their right to liberty, family life, and education. Confining children in settings that may not be therapeutic or stimulating can exacerbate existing difficulties, hinder their development, and perpetuate cycles of trauma. The lack of suitable long-term solutions means many children remain in these restrictive environments for extended periods.

Timeline of Legal and Policy Developments

  • 1997: The European Court of Human Rights’ judgment in HL v United Kingdom (the "Bournewood Gap" case) highlights the lack of legal safeguards for informal admissions to psychiatric hospitals, leading to calls for reform.
  • 2005: Mental Capacity Act (MCA) comes into force, introducing Deprivation of Liberty Safeguards (DoLS) for adults aged 16 and over lacking capacity, but explicitly excluding children under 16.
  • Early 2010s: Increasing recognition of the "Bournewood Gap" for children under 16, with courts beginning to use inherent jurisdiction more frequently for DoL authorisations.
  • 2014: Supreme Court judgment in P v Cheshire West and Chester Council and P and Q v Surrey County Council (the "acid test" for DoL) clarifies the definition of deprivation of liberty, leading to a further surge in DoLS applications for adults and heightened awareness for children.
  • 2017: Law Commission publishes its report recommending replacement of DoLS with Liberty Protection Safeguards (LPS), intended to cover 16-17 year olds and potentially 16-17 year olds in broader circumstances.
  • 2019: Mental Capacity (Amendment) Act 2019 introduces Liberty Protection Safeguards (LPS), intended to simplify and expand DoL authorisations, but its implementation has been repeatedly delayed.
  • 2020: Court of Appeal delivers judgment in Re Agni (Children: Deprivation of Liberty), affirming the High Court’s power to authorise DoL for under-16s in unregistered placements via inherent jurisdiction.
  • 2021-Present: Continued exponential rise in DoL applications for children, with courts regularly reporting overwhelming caseloads and a critical lack of suitable placements. Nuffield FJO and other bodies publish ongoing data and analyses, consistently highlighting systemic failures.

Reactions and Expert Commentary

The Nuffield FJO’s article has garnered significant attention from legal professionals, children’s advocates, and policymakers.

A spokesperson for the Nuffield FJO stated, "Our latest publication underscores the profound challenges facing the family justice system in providing appropriate care for children with complex needs. The Re Agni judgment, while providing a legal mechanism, should not obscure the underlying crisis of insufficient suitable placements. It is a legal sticking plaster over a gaping wound in our care system. We must move beyond simply authorising these placements and focus on creating the therapeutic and safe environments these vulnerable children desperately need."

Legal practitioners have echoed these concerns. "The High Court is inundated with these applications," commented a leading family law barrister. "Judges are placed in an impossible position, having to choose between authorising a less-than-ideal placement or leaving a child without any secure provision. This is not justice; it is crisis management. The system is operating at breaking point, with profound implications for due process and the quality of judicial oversight."

Children’s charities and advocates have strongly reacted to the ongoing trends. A representative from a prominent children’s rights organisation stated, "Every child has a right to liberty and to be cared for in an environment that meets their needs. The current reliance on DoL orders, particularly in unregistered settings, represents a significant failure of the state to protect its most vulnerable children. We are effectively institutionalising children without adequate oversight or therapeutic provision. This article from the Nuffield FJO reinforces our call for a fundamental shift towards prevention, early intervention, and investment in high-quality, local, regulated placements."

Concerns also extend to the financial implications. Local authorities are often paying significantly higher rates for unregistered and out-of-area placements compared to regulated provisions. This diversion of funds, critics argue, perpetuates the problem by failing to invest in the very infrastructure that would alleviate the crisis.

Broader Impact and Implications

The Nuffield FJO’s article reinforces the understanding that the escalating use of DoL orders for children is not merely a legal phenomenon but a symptom of broader systemic failures within the social care and mental health systems. The implications are far-reaching:

  • Strain on the Justice System: The sheer volume of applications strains judicial capacity, legal aid resources, and social work departments, diverting time and funding from other critical child protection work.
  • Compromised Child Welfare: Children subject to DoL orders often experience multiple placement moves, instability, and a lack of therapeutic consistency. This can exacerbate their trauma, impede their development, and reduce their chances of achieving positive long-term outcomes.
  • Human Rights Concerns: The repeated reliance on inherent jurisdiction to authorise deprivation of liberty, especially in settings lacking robust regulatory oversight, raises significant human rights concerns regarding the state’s obligation to protect children’s liberty and ensure their right to appropriate care.
  • Need for Legislative Reform: While the Liberty Protection Safeguards (LPS) are intended to replace DoLS and potentially cover 16-17 year olds, their repeated delays and the specific challenges of under-16s with complex needs suggest that further, targeted legislative reform may be necessary to provide a comprehensive and robust framework for children’s DoL. The current piecemeal approach, heavily reliant on the High Court, is unsustainable.
  • Call for National Strategy: The article implicitly calls for a coherent national strategy that addresses the root causes of the crisis: chronic underfunding of children’s services, a severe shortage of specialist therapeutic placements, and fragmented commissioning practices. This would involve significant investment in prevention, early intervention, and the development of a diverse range of regulated, local care provisions.

In conclusion, the Nuffield Family Justice Observatory’s latest publication serves as a stark reminder of the critical state of affairs regarding deprivation of liberty for children and young people in England and Wales. The Re Agni judgment, while a necessary legal response to a desperate situation, has highlighted rather than resolved the systemic failings. The challenge now lies not in merely legalising placements of last resort, but in fundamentally restructuring the care system to ensure that every child, regardless of their complex needs, can access safe, appropriate, and therapeutic environments that uphold their rights and promote their well-being. The findings demand an urgent, coordinated response from government, local authorities, and the judiciary to safeguard the futures of these highly vulnerable children.