Birmingham City Council v Mother & Ors

When deciding whether a child should be deprived of liberty, the court must assess the child’s best interests and the State’s positive obligations under Articles 2 and 3 of the European Convention on Human Rights. Those obligations include taking reasonable protective steps where there is a known and serious risk of death or serious injury.

Where community care cannot safely manage an exceptionally high risk of serious self-harm or violence, and secure accommodation is unavailable or unsuitable, continued detention may be necessary. The court may also strongly urge another decision-maker, such as a magistrates’ court, to maintain detention temporarily so that lawful secure arrangements can be found, although it cannot direct that court’s decision.

Birmingham City Council applied for a deprivation of liberty order concerning AA, a 15-year-old child with a history of severe dysregulation, serious self-harm, assaults and absconding from care. AA had been detained at HM YOI X since August 2023 following an alleged assault on a police officer and was due to be sentenced by magistrates for assault and escape from custody.

The evidence indicated a continuing risk of suicide, serious self-harm and violence, together with the absence of any secure accommodation able to manage that risk. The central issue was whether release into the local authority’s community care would expose AA or others to an unacceptable and known risk of serious injury or death.

1. Outcome. The application for a deprivation of liberty order concerning AA was granted. The judgment was given to assist the magistrates dealing with AA’s sentencing.
2. In determining AA’s welfare, the court had to consider her best interests under the Children Act 1989. It also had to respect the State’s positive obligations under Articles 2 and 3 of the European Convention on Human Rights, as given domestic effect by the Human Rights Act 1998.
3. Those positive obligations require the State to take protective steps where there is a known risk of death or serious injury. On the evidence, release into the local authority’s community care would be overwhelmingly likely to result shortly in a serious assault and carried a genuine and very serious risk of attempted suicide and serious self-harm.
4. The local authority had taken every possible step to locate secure accommodation. The extreme shortage of suitable placements, together with the refusal of some units to accept AA because of her violence and risk, meant that community placement under a deprivation of liberty order could not safely manage the risk.
5. The judge could not order the magistrates to remand AA at HM YOI X, but strongly urged an adjournment and continued remand to allow time for the local authority to find secure accommodation or pursue alternative legal strategies.