Detained and Restrained: Britain’s Vulnerable Kids

May 27th 2024

Our head of Legal Policy Katy Nisbet discussed the use of Deprivation of Liberty orders with Lucy White on Good Morning Scotland on Friday 24th of May 2024.  In this blog, Katy explains the problematic use of these orders and the issues that they generate – including children and young people from England and Wales being placed in accommodation that doesn’t meet their needs and could breach their rights.  Catch up with the episode of Good Morning Scotland and forward to 2hrs 14mins to listen back.

A secure care systems in crisis

At Clan Childlaw we represent children and young people across Scotland, help them take ownership of their rights and support them to assert those rights when they have been breached.  This includes the increasing number of children who are being cared for in Scotland, but whose families live in England and Wales.  These children are subject to English care orders, but for a variety of reasons it has been considered to be in their interests to be placed in Scotland.  Sometimes that is because there are pre-existing links with Scotland and sometimes it is to remove them from situations that are putting them in danger.    Sometimes, however, the placement in Scotland is the result of an under provision of suitable accommodation in England and Wales.

A new investigation released on File on 4 on Wednesday, reports that for the most vulnerable children in society this shortage of suitable accommodation has hit crisis point.  These are children who are at risk of harming themselves, or harming others, and for their own safety they require to be placed in a therapeutic environment and deprived of their liberty.  This type of accommodation is known as secure care, which is a highly regulated environment which ensures that those who are placed there have their rights respected, have access to appropriate therapeutic and educational support, and are kept safe.   However, since 2002 16 secure care units in England and Wales have shut down, and there are currently 50 children in need of this high level of support, waiting for a place in secure care to become available.

Deprivation of Liberty

In the absence of this type of accommodation, local authorities have asked the courts to grant legal authority to place children – who meet the threshold for secure care– in accommodation which is not designed to offer this level of support nor deprive children of their liberty.    With extreme reluctance the Family Court are granting these orders – known as Deprivation of Liberty Orders [DoL Orders] – where they think it is in their best interests to do so.  However, Sir Andrew McFarlane – the President of the Family Court – says “It’s not infrequent for judges to be given just one option and told this is the only arrangements we can make…And the judge feels compelled to make the order, because not to do so leaves the young person much more at risk”.

Not only does this raise issues about the suitability of accommodation in terms of keeping children safe, their educational and therapeutic needs are also often not being met.  The homes that they are placed in are also not subject to the same level of scrutiny and regulation as secure care accommodation, leading to concern that extremely vulnerable children’s rights are not being adequately protected and the regime in place to monitor standards of care may not detect this.

The Scottish Perspective

In Scotland we have taken the view that if a child needs to be deprived of their liberty this will only happen within the secure care estate which is designed to provide the right level of support to protect their rights and keep them safe.  They also have access to a lawyer throughout their deprivation who can raise any concerns about their care to the Children’s Hearing who will regularly review the case.  This is, in our view, the right approach.  Deprivation of liberty is a serious infringement of rights, and these safeguards are there to ensure that infringement is only applied where it is a necessary and proportionate response, and the correct support is in place.

However, while we do not deprive Scottish children of their liberty outwith the secure estate, we do allow children from England to come to Scotland, be separated from their families and support networks, and be deprived of their liberty in residential children’s homes which are not designed for that purpose.  In our view the lack of safeguards provided by this approach is not acceptable, nor is it compliant with children’s rights under the UNCRC.

We want all children who are being deprived of their liberty and placed in Scotland, to have parity in rights protection, and be able to easily access justice should their rights not be protected.

What can be done?

The issue in Scotland is that the decisions in relation to care are being made in England and Wales with English and Welsh authorities sourcing accommodation. However, while we are not responsible for these decisions, and the circumstances leading to them, the Scottish Government can seek to ensure that every child who is being cared for in Scotland is treated in the same way with the same level of rights protection regardless of why they are here.  The Scottish Government have indicated a willingness to do this and there is an opportunity to do so through the regulatory powers contained in the newly passed Children (Care and Justice) (Scotland) Bill.   We are working with them to ensure all children cared for in Scotland are kept safe and have their rights respected, protected and fulfilled,

If you are in Scotland on a DoL order or are supporting someone who is, please contact us on 08081290522.

To listen to the File on 4 Investigation please click here.