Re The Child (DoL)

A court may authorise a child’s deprivation of liberty only where it is necessary, proportionate and in the child’s best interests. A hospital may lawfully accommodate a child under section 27A of the Care Planning, Placement and Case Review (England) Regulations 2010, but that does not remove the need for judicial authorisation of restrictive measures. Any restraint must be the least restrictive, proportionate to the anticipated harm, limited to what is required for safety, and respectful of the child’s dignity. Where no suitable placement is available, the court may authorise necessary restrictions in an unsuitable hospital setting, while continuing to review their necessity and pressing for proper accommodation.

The local authority sought authorisation for restrictions on the liberty of a 15-year-old child, including continuous supervision, hospital accommodation, physical restraint as a last resort, control of telephone and internet access, and supervised contact. The child had experienced serious self-harm risks, repeated placement breakdowns and mental health difficulties. No suitable therapeutic placement was available, and the child was living on a children’s hospital ward despite not requiring hospital treatment. The court considered whether the restrictions and hospital placement could lawfully be authorised and whether they were necessary, proportionate and in the child’s best interests.

1. Authorisation granted. The court approved a final care order and authorised the local authority and NHS Trust to deprive the child of liberty and to use specified safeguards and minimum necessary force or restraint.
2. The restrictions amounted to continual confinement, which the child could not consent to and which was imputable to the state. The court therefore had to be satisfied that the deprivation of liberty was necessary, proportionate and in the child’s best interests. The judge adopted the applicable analyses in Wigan MBC v W, N and Y [2021] EWHC 1982 (Fam), Nottinghamshire County Council v LH (No. 1) [2021] EWHC 2584 (Fam), Nottinghamshire County Council v LH (No. 2) [2021] EWHC 2593 (Fam), Lancashire County Council v G and N [2020] EWHC 2828, Re T [2021] UKSC 35, Tameside MBC v AM and others EWHC 2472 (Fam) and A mother v Derby City Council [2021] EWCA Civ 1867.
3. A hospital was not a children’s home and was outside Ofsted’s regulatory regime, but placement in hospital was lawful under section 27A of the Care Planning, Placement and Case Review (England) Regulations 2010. Judicial authorisation remained necessary because the restrictions were significant intrusions into personal autonomy.
4. The force or restraint authorised had to be the least restrictive of the child’s rights and freedoms, proportionate to the anticipated harm, no more than required for the safety of the child and others, and respectful of the child’s dignity.
5. Because no suitable alternative placement was available and the restrictions were required to keep the child safe, authorisation had to be given. The necessity of the restrictions was to be reviewed in January, with the continuing need to secure suitable accommodation.