Dorset Council v E (Unregulated placement : Lack of secure placements)

A local authority must apply for a secure accommodation order where the statutory test is met and the child requires secure accommodation. A shortage of secure placements does not justify relying on an unregulated placement while avoiding the statutory scheme. Restrictions amounting to a deprivation of liberty must satisfy the Storck criteria and be necessary, proportionate and least restrictive. Unregulated placements raise serious safeguarding and regulatory concerns. Where it is unclear whether a placement provides care and accommodation wholly or mainly for children, further evidence is required to determine whether registration is required.

Dorset Council applied under the inherent jurisdiction for authorisation to deprive E, a highly vulnerable 16-year-old, of his liberty in an unregulated placement. It also sought an interim care order under the Children Act 1989, initially while searching for a secure placement. E’s serious risk-taking, absconding, substance misuse and self-harm meant that all parties agreed he required secure accommodation, but no secure placement was immediately available.

The court directed the local authority to make a secure accommodation application. A safer, rural but still unregulated placement was then identified. The issues were whether the interim care and deprivation of liberty orders were justified, whether the statutory test for secure accommodation was met, and whether the proposed placement required registration as a children’s home.

1. Interim care order. E was beyond parental control. The threshold under sections 38 and 31(2)(b)(ii) of the Children Act 1989 was met. Having regard to the risks, their consequences and the local authority’s inability to manage them without exercising parental responsibility and using a secure placement, the order was necessary and proportionate under Article 8.
2. Deprivation of liberty. The restrictions included constant two-to-one supervision, locked doors and windows, limits on money, phones and internet access, supervised medication and removal of potentially dangerous objects. Applying Storck v Germany (2006) 43 EHRR 6, the court found an objective confinement, lack of consent and State imputability. The restrictions were necessary, proportionate and the least restrictive means of safeguarding E and others under Article 5.
3. Secure accommodation. The court found that E was likely to abscond from non-secure accommodation and, if he did so, suffer significant harm. He was also likely to injure himself or others if kept in non-secure accommodation. The test under section 25 of the Children Act 1989 was therefore met and the court was required to make a secure accommodation order, initially for three months.
4. Unregulated placement. The court endorsed the concerns identified in Re S (Child in care: Unregulated placement) [2020] EWHC 1012 (Fam) about the lack of regulated provision and the safeguarding risks of unregistered children’s homes. Urgency did not make such placements acceptable. Under section 11 of the Care Standards Act 2000, operating or managing a children’s home without registration is an offence. The proposed placement’s status could not be determined on the evidence, and further submissions were required on whether it provided care and accommodation wholly or mainly for children and fell within regulation 3 of the Children’s Homes (England) Regulations 2015.
5. The deprivation of liberty order was to be reviewed on 16 June 2020. The judgment was directed to be sent to the Secretary of State for Education and the Children’s Commissioner because of the shortage of secure placements.

First-instance decision. No appeal or earlier judgment in the same proceedings is stated.