Re J (Deprivation of Liberty: Hospital)

The inherent jurisdiction may authorise a child’s deprivation of liberty in a hospital or unregistered placement only where the restrictions are necessary, proportionate and in the child’s best interests. A hospital is not a suitable home for a child who has no need for inpatient treatment, and continuation there must be limited to the shortest period absolutely necessary. The court must examine the restrictions sought and cannot act as a rubber stamp, even where no suitable alternative is available. It may authorise an unregistered placement where there is imperative necessity and no lawful, suitable alternative, but regulatory oversight cannot be replaced by court monitoring.

Manchester City Council sought continued authorisation under the inherent jurisdiction for the deprivation of liberty of J, a 13-year-old child with complex developmental and behavioural needs. J was subject to an interim care order but had remained in hospital for about three months because no suitable placement had been found. She had no medical need for inpatient treatment, and all parties agreed that the hospital was unsuitable.

The application concerned continued restrictions in hospital pending transfer to a proposed bespoke, unregistered placement, and authorisation of restrictions at that placement. The court also considered reporting restrictions and whether the applicant local authority could be identified.

1. Deprivation of liberty. J was continually confined, could not consent to the restrictions and was subject to state-imputable measures. The restrictions therefore constituted a deprivation of liberty.
2. The court adopted the applicable analysis in Wigan MBC v W, N and Y, Nottinghamshire County Council v LH (No. 1), Nottinghamshire County Council v LH (No. 2), Lancashire County Council v G and N, Tameside MBC v AM and others, Re T and A mother v Derby City Council. Authorisation required necessity, proportionality and the child’s best interests.
3. A hospital was lawful accommodation under section 27A of the Care Planning, Placement and Case Review (England) Regulations 2010, and was not an unregistered children’s home. That did not remove the need for a rigorous welfare and proportionality assessment. A hospital was unsuitable for J and she could not remain there longer than absolutely necessary.
4. The court considered and rejected the available alternatives. Returning home and foster care were unsafe or unsuitable; secure accommodation was practically unavailable; and no registered children’s home had accepted J. The proposed bespoke placement was unregistered, but there was imperative necessity for transfer because it was the only realistic alternative within a reasonable time and was supported by a structured transition plan.
5. The court authorised the existing restrictions in hospital only until transfer and authorised the proposed restrictions at the new placement. Restraint had to be the minimum necessary, proportionate to anticipated harm, least restrictive, respectful of J’s dignity and used only by trained and competent staff. The Council was required to continue searching for a registered placement, and the judgment was to be provided to Ofsted, the Secretary of State for Education and the Children’s Commissioner.
6. On reporting restrictions, the court applied the intense comparative assessment required by Re S (a child) (Identifications: Restriction on Publication) and the requirement to consider less restrictive alternatives identified in JIH v News Group Newspapers Ltd. Manchester City Council could be named, but information likely to identify J, her family, the hospitals and relevant staff remained protected.

First-instance decision on an application for authorisation of deprivation of liberty under the inherent jurisdiction. No appeal was stated in the judgment.