BA (A Child) (DOLS In Hospital), Re

A deprivation of liberty order for a child must identify an Article 5-compliant purpose and provide adequate reasons for the detention. Educational supervision is interpreted broadly. It extends beyond classroom attendance to the child’s physical, intellectual, emotional, social and behavioural development. It cannot, however, be equated wholly with welfare or used primarily to prevent absconding. The evidence must show that education is a central focus of the placement and that sufficient resources have been allocated to it. Where no secure accommodation is available, the High Court may invoke its inherent jurisdiction under section 100 of the Children Act 1989 if the statutory conditions and risk-of-harm test are met. Detention in an unsuitable hospital setting must remain necessary and proportionate, and should be limited to the shortest period needed for a safe transition.

A London Borough applied for authority to deprive BA, a highly vulnerable thirteen-year-old child, of her liberty. BA had been discharged from detention under section 3 of the Mental Health Act 1983 and had then moved from an unsuccessful solo placement to a windowless room in a busy hospital accident and emergency department. Earlier deprivation of liberty orders had authorised the hospital placement as a temporary arrangement. The borough sought continuation while a suitable residential placement was identified.

The parents initially opposed continued detention, while BA’s Guardian supported the application. The central issues were whether the proposed detention had an Article 5-compliant purpose, whether the High Court could exercise its inherent jurisdiction, and whether the hospital detention remained necessary and proportionate.

1. Outcome. The court authorised BA’s deprivation of liberty only for the short period required to transition her from hospital to an identified children’s home. Hospital detention could not continue beyond 14 days from 16 March 2026. Thereafter, the authorisation applied only at the children’s home, with a review listed for the end of April 2026.
2. Article 5 purpose. The order was made for educational supervision under Article 5(1)(d) of the European Convention on Human Rights. Educational supervision has a wide meaning. It includes a broad package directed to the child’s general physical, intellectual, emotional, social and behavioural development, and is not confined to formal classroom education. It cannot be wholly equated with welfare or justified primarily by a need to prevent absconding. The proposed placement had to demonstrate that education was a central focus and that sufficient resources had been allocated to it.
3. Reasons and scrutiny. Adequate and intelligible reasons are required for decisions depriving a person of liberty. Particular care and strict scrutiny are required where the person is a vulnerable child. The absence of clear evidence about BA’s education, EHCP provision and statutory review was therefore a serious concern.
4. Inherent jurisdiction. Leave to invoke the High Court’s inherent jurisdiction under section 100(3) of the Children Act 1989 was granted. The test in section 100(4) was met because no secure accommodation was available under section 25. Without the order, BA was likely to suffer serious harm through self-harm or violent behaviour.
5. Necessity and proportionality. The children’s home offered education, therapies, transition planning and family involvement. The agreed restrictions satisfied the confinement “acid test”, were attributable to the State, and were necessary and proportionate to the identified risks. The hospital setting was intolerable and could not continue as the substantive placement.