D (A Child) (Significant Harm: State Responsibility),

Where a child is placed in the State’s care, prolonged failure to provide suitable accommodation and therapeutic support may itself constitute significant harm under section 31(2) of the Children Act 1989. The State may thereby become an agent of harm, notwithstanding the good intentions of the professionals involved. The court must focus on the child’s dignity, safety, physical health and emotional welfare, while recognising the corresponding positive obligations arising under Articles 2, 3 and 8 of the Convention. A declaration of inhuman or degrading treatment under Article 3 requires sufficient evidence; serious concern alone is insufficient.

D was a child with autism and learning needs who had developed severe behavioural difficulties after experiencing atrocities in Iraq. With parental agreement under section 20 of the Children Act 1989, she was placed in residential care, but the placement failed. She was subsequently admitted to hospital, where she remained for several months without a suitable therapeutic residential placement.

The case was transferred from HHJ De Haas QC to the High Court after repeated difficulties in securing appropriate care. D’s behaviour caused her profound distress and injury risk, occupied hospital resources, and injured staff. The central issue was whether the prolonged failure to provide suitable care had caused legally significant harm and what protective obligations were engaged.

1. Significant harm. The court found that D had suffered profound physical and emotional harm while accommodated in circumstances that failed to meet even her most basic needs. Applying section 31(2) of the Children Act 1989, the judge held that the State, from which D was entitled to expect care and support, had become an agent of harm.
2. State obligations. The court endorsed the relevance of the State’s positive obligations under Articles 2, 3 and 8 of the Convention. The judge considered the reasoning in Re X (a Child, No 3) [2017] EWHC 2036 (Fam) entirely apposite and restated its warning concerning the lack of proper clinical, residential and support services for vulnerable children. The judge also referred to Re LB Southwark v F [2017] EWHC 2189 (Fam) as an earlier judgment concerning High Court intervention in such cases.
3. Article 3. A submission that the circumstances amounted to inhuman or degrading treatment was not determined. The evidence was insufficient to justify a declaration under Article 3 at that hearing.
4. Practical outcome. A therapeutic residential placement had been approved shortly before the hearing, with CAMHS support, trained staff, medical support and arrangements for contact with D’s parents. The case was to remain under scrutiny by HHJ De Haas QC, with liberty to return to the High Court on short notice if the placement was at risk.

The matter was initially managed by HHJ De Haas QC, the Designated Family Judge for Liverpool and Merseyside. After repeated failure to secure a suitable placement, she transferred the case to the High Court. The High Court continued the care arrangements and directed further monitoring.