14 June, 2019
Anne Longfield, the Children's Commissioner for England, has published a report whereby she calls upon local authorities, and other institutions, to collate and provide data regarding all children who have been accommodated in a secure setting, and therefore deprived of their liberty.
In essence, the data to be provided by the local authorities should detail the number of children who have had their liberty restricted at any one time, and the legal basis for this. The data must also evidence where those children are living. This information is also to be provided to Ofsted and the Care Quality Commission.
In her report entitled, 'Who are they? Where are they? Children Locked Up', the Children's Commissioner states that such data is essential in determining whether the institutions and/or placements meet the children's specific needs, or whether the circumstances could have been handled differently, without depriving the children of their liberty. "We are concerned that the lack of transparency about the high level of intervention needed to look after these children, the appropriateness of the settings, and the legal safeguards in place for them mean that these children are in some ways the most vulnerable."
It is also concerning that the whereabouts of many children who have been securely detained are unknown; they have become 'invisible'. This can occur where the court has used its inherent jurisdiction to deprive a child of their liberty, and therefore the placement falls out of a statutory regime.
The Children's Commissioner has identified several findings based on the limited data currently available. Essentially she found that:
The President of the Family Division, Sir Andrew McFarlane, also addressed this issue in his Nicholas Wall Memorial lecture entitled, 'The Children Act 1989: 30 Years On.' He reflects on the efficiency of the Children Act 1989 in encompassing 'the needs of young people who may require to be accommodated in circumstances where their liberty is restricted.'
Sir Andrew states that there are a lack of placements for children who require accommodation through section 25 of the Children Act 1989. Each time a 'secure bed' comes free, approximately 15 to 20 'potential occupiers' chase it. This may lead to the local authority making an application to the court for placement in a children's home which has not been approved. The placement may be outside of the local area and therefore outside of the knowledge of the court. The Children Act 1989 does not authorise the court to order such a placement. Instead the court would need to make an order outside of the statutory regime, and this would usually be made through the High Court's inherent jurisdiction. Sir Andrew has, 'a profound unease over the court frequently being asked to approve the accommodation of children when it, the court, has no means of checking or auditing the suitability of the facility that is to be used.'
Sir Andrew intends to issue 'practice guidance' by the end of July 2019 to the courts so that more placements fall under the statutory regime.
Local authorities will need to provide data to the Care Quality Commission, Ofsted, and the Children's Commissioner's office. The data should show, 'the number of children deprived of liberty in their area at any one time, the legal basis for that deprivation of liberty, and where those children are living.' It should also establish the children's pathways throughout the period that they are securely detained, and the length of time that they must wait for a bed in a Secure Children's Home. The Children's Commissioner also recommended that if a placement through care proceedings is to deprive a child of their liberty, this should always be recorded in the care order. The same will also apply to s20 agreements.
A joint working group will be formed between the Department for Health and Social Care, the Ministry of Justice and the Department for Education. This will detail the pathways of all children into and out of the secure accommodation.
The Children's Commissioner also made various recommendations to the Department of Education and NHS England to evidence the ethnicity, gender, information on admission, length of stay etc. of all children who are securely detained, together with details as to when this data should be published and details of what such published information should include.