S (Child in Care. Unregistered Placement)

A deprivation of liberty may be authorised for a child in an unregistered placement where the restrictions are necessary, proportionate and the least restrictive means of preventing likely significant harm. The court must apply the three elements of deprivation of liberty under Article 5 of the European Convention on Human Rights: confinement, lack of consent and State responsibility. An urgent shortage of registered or secure accommodation does not make an unregistered placement acceptable, and does not remove the need for lawful authorisation, regular review and active efforts to secure suitable regulated provision. Running a children’s home without registration remains a criminal offence.

East Riding of Yorkshire Council applied to renew an authorisation permitting the deprivation of liberty of a 15-year-old child subject to an interim care order. She had complex and dangerous behaviours, including repeated absconding and serious self-harm, but was living alone with staff in a holiday cottage providing care and accommodation without registration.

The application arose after repeated placement breakdowns and extensive, unsuccessful searches for secure or registered accommodation. The central issues were whether the restrictions amounted to a deprivation of liberty, whether they were lawful and proportionate, and whether the court should continue the authorisation notwithstanding the unregistered placement.

1. Authorisation granted. The restrictions imposed at the holiday cottage amounted to a deprivation of liberty for Article 5 purposes. Applying Storck v Germany (2006) 43 EHRR 6, the court identified the objective element of confinement to a limited place for a non-negligible period, the subjective element of absence of consent, and confinement imputable to the State. All three elements were present.
2. The restrictions were necessary and proportionate, and were the least restrictive measures reasonably available. There was reasonable cause to believe that, without the restrictions, the child was likely to suffer significant harm, and no other available means could adequately protect her. The authorisation therefore remained in her best interests.
3. The declaration extended to transporting the child to and from the placement, court, contact and other necessary journeys. Reasonable force could be used where necessary to detain or return her to transport.
4. The court stressed that the placement was unsatisfactory and temporary. The shortage of secure provision did not make the arrangement acceptable. Accommodation providing care and accommodation for children fell within the statutory concept of a children’s home, and operating such a home without registration was a criminal offence under section 11 of the Care Standards Act 2000.
5. The local authority was required to continue seeking suitable registered or secure accommodation and to take immediate steps to seek registration of the current placement if registration was required. The judgment and redacted documents were directed to be sent to specified public office-holders to raise the wider systemic issue.