04 May, 2020
18 months ago, the President of the Family Division, Sir Andrew McFarlane raised grave concerns, stemming from the official figures and anecdotal evidence of advocates and judges, as to the growing disparity between the demand for secure accommodation places and the limited number available. Thus, requiring increasing numbers of applications under the inherent jurisdiction for authorisation to place children in units not approved by the Secretary of State.
In April 2020 the issue raised its head again in the Family Court in Leeds in the case of Re S (Child in Care: Unregistered Placement). In this case Mr Justice Cobb took the very unusual step of disclosing documents from the case to a number of Government Departments and national agencies with an invitation to them to advise whether they could assist specifically to find a placement, or provide any new perspective on the challenges faced by this Local Authority in doing so. The Children's Commissioner responded to this request in stark terms.
The Children's Commissioner commented that "This case is indicative of a nationwide problem with capacity in the children's social care system, particularly for children who need secure care. The Commissioner has been highlighting her concerns on this issue to the appropriate authorities for over a year. The Secure Welfare Coordination Unit (SWCU) report confirms that 492 referrals in this regard were received last year.
[The SWCU] highlights that many children are living in temporary or unregulated settings when they are referred to secure care. The report notes that 16 per cent of children were living in 'CLA - Other' accommodation at the point they were referred to SWCU. Examples of this kind of accommodation include being held by police, unregulated placements, holiday lets and rented houses with staff.
Some children (perhaps the most complex) are often refused multiple times….
CAFCASS have provided data on how many applications for Deprivation of Liberty authorisations were made to the high court. There were 122 applications between 1st April and 31st March 2018, and 185 between 1st April 2018 and 31st January 2019. These numbers give an indication of the number of children who are in a similar situation to [the child] the subject of these proceedings.
The Children's Commissioner's Advice and Representation service, Help at Hand, is also regularly contacted by young people and professionals concerned that there is no appropriate home for children in care to live in. In many cases, these are children who are ready to come out of a more restrictive setting, like a secure children's home or a mental health ward and can't because the Local Authority cannot find a place that will take them. On other occasions, these are children who are living in a less supportive setting and who need more care. Our work on unregistered and unregulated settings has revealed that in some cases the children in these settings have a very high level of need, and receive high levels of care outside of the requisite regulatory framework…"
Mr Justice Cobb confirms in his judgment that The President of the Family Division has had sight of this judgment and a collection of documents from the case are to be sent to the Secretary of State for Education, Chair of the Residential Care Leadership Board, Minister for Children, and to the Chief Social Worker for Children and Families for further consideration.
The above concern, with regards to the availability of specialist and secure placements and the use of unregulated placements, is not new but the issue has certainly not improved. The current lockdown will inevitably make things more stressful, leaving children often in limbo or in inappropriate settings. In the recent case of Re S, although the judge noted that the Local Authority involved was doing its best for the child, who is currently residing in a holiday cottage, he noted that the Local Authority had to accept that "this is not a situation which truly meets her multiple needs - for therapy, education, stability and security. The authority feels powerless to secure an appropriate alternative placement for her, and accepts that the care system overall has in many ways failed her."
Liabilities arising from a nationwide dearth of specialist placements are undoubtedly a legitimate concern for all Local Authority Social Care departments.
So how best do we protect children's services from claims arising when resources and availability are a national problem?
We must go back to the test; what would a reasonable body of qualified social workers do in the circumstances that present themselves?
Clear and detailed documentation is always key to defending such matters. It is essential to be able to "hear" the social worker's voice when reviewing the case files, and to find evidence of the avenues explored and efforts made.
We often see cases where decisions are recorded in isolation. Without context, such decisions can be hard to justify or defend, as we cannot explain the financial constraints at play, why a seemingly more suitable placement was not chosen and why a final decision was made/ approved.
Emergency breakdowns, crises, and the consequential pressures may explain the lack of recording. So too could a lack of training or inexperience. However, when processes are documented, avenues of investigation and shortlisted searches listed, attempts made and rejections documented, and the best outcome available is then fully recorded, we are likely to be able to argue in any civil claim presented that no other reasonable social worker could have done any better with regards to the interests of the child, thereby providing the Local Authority with a defence.
It is heart-warming to see evidence of this in Re S. The judge records; "I have been provided with detailed accounts of the efforts made by ERYC in undertaking its extensive nationwide searches for a placement" which no doubt enabled the Judge to conclude: "I am satisfied that ERYC is doing its best for [the child]."
Clear and detailed documentation is always key to defending such matters, but this is all the more important in the current environment, as an even greater shortage of placements and funding is likely to follow.