Lancashire CC v G (No3)(Continuing Unavailability of Secure Accommodation)

The court may authorise a deprivation of a child’s liberty under its inherent jurisdiction where the arrangement falls within Art 5 of the ECHR and authorisation is in the child’s best interests. An unregulated placement may be authorised where no suitable secure, regulated non-secure or restrictive clinical placement is available, but the court must scrutinise the arrangement closely and keep the authorisation under review. The acute shortage of placements must not convert the best-interests assessment into a mere safety or necessity assessment. Safeguarding arrangements may justify authorisation only on a narrow and increasingly fragile balance where the placement remains unsuitable to meet the child’s wider welfare needs.

This was the third judgment concerning G, a 16-year-old child whose liberty had previously been authorised in an unregulated placement. Earlier judgments had been given on 23 October 2020 and 18 November 2020. The local authority continued to seek a secure placement, while G’s Children’s Guardian supported a regulated non-secure placement with therapeutic input.

No suitable placement was available. G’s behaviour had deteriorated, including repeated self-harm and suicide attempts. The court therefore had to decide whether continued deprivation of liberty in the existing unregulated placement remained lawful and in G’s best interests, notwithstanding the placement’s shortcomings and the absence of a statutory placement capable of meeting her needs.

1. The court renewed the authorisation for G’s deprivation of liberty in the unregulated placement. Under the inherent jurisdiction, authorisation was permissible because G was deprived of her liberty for the purposes of Art 5 of the ECHR and the court remained satisfied, albeit on an increasingly narrow balance, that the arrangement was in her best interests.

2. The relevant restrictions included continuous three-to-one supervision, locked doors and car doors where necessary, escorting G outside the placement, reasonable and proportionate measures to prevent her leaving or to return her, proportionate restraint when distressed, restricted access to her mobile phone and a ten-minute waking watch. G could not consent, was subject to continuous supervision and control, and was not free to leave.

3. The absence of suitable secure accommodation, regulated non-secure accommodation and an appropriate restrictive clinical environment left the court with an unattractive choice. Refusing authorisation would expose G to an almost certain risk of serious, potentially fatal harm in the community. Continuing authorisation preserved her immediate safety, but the placement was not designed to meet her complex welfare needs and could not provide the therapeutic input required.

4. The court emphasised that the statutory safeguards under Children Act 1989, s 25, and the regulatory regime for registered placements were absent. The ad hoc safeguards therefore required close monitoring. The shortage of placements risked reducing the best-interests test to a transactional exercise focused principally on safety, rather than the wider welfare analysis required by the paramountcy principle.

5. The matter was listed for a further hearing in 14 days. The court directed that the judgment be sent to the specified public authorities and regulators, given the wider systemic shortage and the repeated need to authorise children’s deprivation of liberty in inappropriate unregulated settings.

This was a first-instance decision in continuing proceedings. The judgment records earlier decisions in the same matter, including [2020] EWHC 2828 (Fam) and [2020] EWHC 3124 (Fam).