What do we mean by a deprivation of liberty?

A deprivation of liberty occurs when restrictions are placed on an individual’s liberty that, in the case of a child, would not normally be expected of a child of a similar age. Examples are a child being kept in a locked place and not allowed to leave, kept under continuous supervision or restrained in some other way. The United Nations Convention on the Rights of the Child (UNCRC) states that restrictions on a child’s liberty should only be used as a measure of last resort and for the shortest appropriate period of time.

 

How is this authorised in Scotland?

In Scotland: Depriving a child of their liberty can be for their own protection (welfare reasons or mental health law) or criminal justice purposes. It must be carried out in accordance with, and provided for, by the law. In the children’s hearings system, a deprivation of liberty is most likely to occur as a result of a secure accommodation authorisation. If a child meets the criteria provided for by law (in the box below), the child can be placed in secure accommodation, which is accommodation regulated and authorised by the Scottish Government to provide secure care and place restrictions on a child’s liberty. There are regulated secure units in Scotland. A secure authorisation must, in accoradance with the law, be reviewed at least every 3 months.

Secure criteria:

 

What happens in England and Wales?

In England and Wales, reasons you can provide for depriving a child of their liberty on welfare grounds are much the same as they are in Scotland. These are known as “secure orders”.

Section 25 of the Children Act 1989

The law In England also stipulates that children requiring secure care for welfare reasons must be placed in secure children’s homes – these are registered residential children’s homes that are authorised to place restrictions on a child’s liberty. There are also review mechanisms. Secure orders must be reviewed every 3 months and then every 6 months after that.

Children on secure orders in England can be placed in secure accommodation in Scotland. A census carried out by CYCJ found that a third of all children in Scottish secure units at any one time are placed by English local authorities.

 

So if England and Wales have secure orders, what are Deprivation of Liberty Orders?

More children in England and Wales are referred for a place in secure care on welfare grounds that can ultimately be placed. In 2022, around half of all children referred for a place in secure children’s home were actually found one. Research suggests that there are some children who are considered too challenging or with too many complex needs to be suitable for a secure children’s home. In addition, the number of secure children’s homes has fallen in the last 20 years. As of 2022, there were 13 registered secure children’s homes in England providing spaces for just 130 children who need one on welfare grounds. Around 50 children from England and Wales a year are placed in Scottish secure accommodation.

Deprivation of Liberty Orders are a temporary fix to this problem.  

When a secure accommodation place for a child can’t be found, the High Court in England can use the powers under its “inherent jurisdiction” to deprive a child of their liberty. In other words, the High Court can make an order to deprive a child of their liberty where no statutory mechanisms to authorise that deprivation of liberty apply. That means an application must be made to the High Court where a child under 16 is to be placed in a setting that doesn’t constitute secure accommodation. This allows for a child to deprived of their liberty in an alternative, unregulated secure placement.

Deprivation of Liberty Orders issued under the inherent jurisdiction of the High Court do not come with statutory review mechanisms. The Judges in the High Court have made it clear in the judgements issued in these types of cases that they are not content with issuing Depreivation of Liberty Orders, but feel there is no choice when the alternative is no appropriate care for the child at all.

 

How many children are subject to DOLs?

Until the year 2022/23, no routine information was collected or published about the number of children subject to Deprivation of Liberty Orders, however a research paper on the subject by the Nuffield Family Justice Observatory obtained data from various sources and suggested the following estimate:

2017/18 2018/19 2019/20 2020/21
Secure accommodation applications (regulated secure accommodation) 518 499 502 392
Deprivation of Liberty applications – inherent jurisdiction (unregulated for secure care) 103 215 332 579

 

There had been an increase of DOL orders of 462% in 4 years and they now outnumber secure accommodation applications.

 

National Deprivation of Liberty Court

In response to the increasing number of DOLs and the concerns expressed by the Judges of the High Court themselves, a National Deprivation of Liberty Court was established in July 2022. It now deals with all new applications for Deprivation of Liberty Orders. The Nuffield Family Justice Observatory was tasked with collected data from the first full year of that Court. Their updates and findings can be found on their website.

What does this mean for us in Scotland?

Deprivation of Liberty Orders are authorising the placement of children from England and Wales in Scottish children’s homes that are not regulated for, or providing, secure care in the way that we would expect that care to be provided for Scottish children. We know that children are often accommodated in Scotland in units that are unable to keep them secure, do not have specially trained staff and lack provision for education or mental health support. They are also often isolated, being the only child housed in the accommodation. Children are also, by being placed in Scotland, often hundreds of miles from their family, leading to little or no contact with anyone other than professionals.

Prior to new Regulations coming into force in July 2022, a local authority in England who were placing a child in Scotland with a DOL order had to apply to the Court of Session in Edinburgh to ensure that there was lawful authority in Scotland to deprive a child of their liberty here. There was no legislative arrangement to recognise DOL orders as there were for secure orders made in England. New Regulations brought in by the Scottish Government in July 2022 created simpler path to having DOL orders recognised in Scotland. At the same time, it created duties on the local authorities in England and Wales who plan on placing a child here to:

None of the bodies notified of the child being placed in Scotland has ny duties to check on the child’s welfare or the suitability of the accommodation. These duties remain with the English courts and those placing the child.  There is no oversight from the Children’s Hearings system.

What can you do if you are advocating for a child subject to a Deprivation of Liberty Order placed in Scotland?

Some points you may wish to check with the child/young person:

If the answer to any of these questions is no, then the child/young person might benefit from legal advice. A solicitor in Scotland will not be able to make any changes to the legal order in England, but could help in assisting the child to find legal representation in England, and advise on aspects of their care here in Scotland.