The National Deprivation of Liberty Court

We are now nine months into the one year pilot of the National Deprivation of Liberty Court, and the Nuffield Family Justice Observatory (‘NFJO’) have published their briefing highlighting the ‘Latest data trends - February 2023’, and a study detailing the needs and characteristics of the children subject to Deprivation of Liberty (‘DoL’) applications ‘An analysis of the first two months of applications at the national deprivation of liberty court’.

The creation of the National Deprivation of Liberty Court

The National Deprivation of Liberty Court was set up to improve the process for considering applications for children to be deprived of their liberty under the inherent jurisdiction of the High Court. Its purpose is not to consider a DoL under the Mental Capacity Act, nor a detention under the Mental Health Act.

A DoL occurs when restrictions are placed upon a child’s liberty that are beyond what would normally be expected for a child of the same age. This may include them being required to live somewhere they are not free to leave, being under continuous supervision and control, and subject to restraint or medical treatment without consent. DoL applications under the inherent jurisdiction are made when other statutory powers are not available in the situation, such as when there are no beds available in secure children’s homes and local authorities have to look elsewhere.

In early 2022, the NFJO published research which showed that the number of High Court applications to deprive children of their liberty, by placing them in unregulated settings, had seen a rise of 462% in the three years to 2020/21. Lisa Harker, the director of the NFJO, said “The use of the inherent jurisdiction of the High Court is intended as a last resort, yet last year hundreds of children were deprived of their liberty in this way, … We need an urgent rethink about how we improve the lives of the most vulnerable children in our society, and to be clear about the purpose of depriving young people of their liberty.”

In June 2022, it was announced that, from 4 July 2022, all new application seeking the authorisation of a DoL under the inherent jurisdiction would be issued in the Royal Courts of Justice. When announcing its launch, Sir Andrew McFarlane, President of the Family Division, said “This is important, sensitive work and the continued growth in the number of these applications to the family courts requires the creation of a dedicated listing protocol. The national DoLs court will provide the necessary expertise in dealing with these matters.”

Data trends – February 2023

A total of 854 children have been the subject of a DoL application since the creation of the National Deprivation of Liberty Court. On average, there have been 113 applications per month. Just over a fifth (21.8%) of all applications were made by local authorities in the North West, followed by 16.6% of applications from local authorities in London. Local authorities in the North East have made the fewest number of applications (3.8% of the total).

An analysis of the applications at the National Deprivation of Liberty Court

The key findings of the NFJO’s analysis includes the following:

• The most commonly identified risk factors were behaviours that were considered a risk to others (e.g. physical or verbal aggression (69.2%), concerns about mental health or emotional difficulties (59.1%), placement breakdown (55.3%), self-harm or suicidal ideation (52.4%), and absconding behaviours (46.6%).
• Children were well known to services. Only 10 of the 208 children had recently come to the attention of the local authority and almost all (96.6%) were in care at the time of the DoL application.
• Most children (70.7%) were aged between 14 and 16 years old at the time of the application, but a significant number of children (7.2%) were aged 12 or under.
• The restrictions requested in the applications were multiple and included severe constraints on the child, including, in almost all cases, constant daytime supervision (ranging from 1:1 to 4:1 adult to child supervision), as well as: the locking of doors and windows to prevent the child leaving the placement; restrictions on their use of the internet, social media and a mobile phone; restrictions on access to belongings and money; and the use of physical restraint.
• Too few placements were available that could meet the complex needs of children. In just under half of the applications, children were going to be placed in unregistered settings (45.6%) – this included the use of semi-independent (unregulated) placements, hospitals, residential homes that were Care Quality Commission (CQC) but not Ofsted-registered, and rented flats or holiday lets staffed with agency workers.

The NFJO’s analysis shows that by the time they are subject to a DoL application, the risks that children face are immediate and severe. They are in need of intensive care as a minimum. They are likely to require care that is stable, with consistent professional support from carers who are able to build trusting relationships over time, along with access to specialist therapeutic support and education.

The applications are, sadly, too often necessary, because children need to be placed in an unregistered placement, as a stopgap, in the hope that somewhere more suitable will become available soon. However, a dire national shortage of suitable placements means that in many cases, children will remain in temporary or crisis placements for longer periods.

The work of the NFJO highlights the long-recognised reality to those working to support these children. There is an urgent need to develop new provision, with joint input from children’s social care, mental health services and schools. Hopefully the work of the National Deprivation of Liberty Court and the Nuffield Family Justice Observatory will help to ensure a greater focus upon the issues, and the resulting impact upon the substantial numbers of children affected. It is clear that a nationwide strategy is required from the government, with a significant commitment from services at a local and national level.