Children needing secure care, caught between the rock of placement shortages and the hard place of regulations
On 21 July 2021 the High Court listed an application for an interim care order and secure placement order in respect of G, a 15 year old boy . The circumstances were unusual, in that G was living at home with his mother and younger siblings, but police intelligence had established that there was a serious and credible threat to his life. G had connections with gangs and had recently been released from remand in custody after being acquitted of drug charges. The Court were satisfied that his life was in immediate danger.
The local authority told the Court that they were not currently pursuing the secure accommodation order, as they had contacted over 250 units in England and Scotland, and there were no places available for him. They also felt that they would not be able to exercise parental responsibility while G remained at home and no longer sought an interim care order.
Consideration was given to the construction of a bespoke placement where G could be placed under the ‘other arrangements’ provision of the Children Act 1989 s22(6)(d), combined with an order under the inherent jurisdiction allowing the deprivation of G’s liberty in such a placement. This option was dismissed by the local authority partly because the high level of trained staff this would require could not be assembled at short notice, and because such a placement would in any event become unlawful on 9 September. This is when the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 come into force, prohibiting the placement of children under 16 in unregulated settings.
The Courts have seen an increase in inherent jurisdiction applications in recent years, usually for children with complex needs which manifests in behaviours which put the child and others at risk of serious harm. Often a secure unit will not be able to manage the high level of therapeutic needs that the child has, but the NHS will assess the child as not having mental health needs justifying a secure hospital bed. Local authorities are forced to cobble together an impromptu ‘residential unit’ consisting of a rented house (or sometimes even a caravan) with a high number of staff containing the child as best they can until a more suitable placement becomes available. The Courts have authorised these placements with reluctance, and there is a series of despairing judgments from MacDonald J in one recent case poignantly entitled Lancashire CC v G (No..)(Continuing Unavailability of Secure Accommodation). On 14 July 2021 MacDonald J refused to authorise an arrangement that saw a 12 year old boy being chemically and physically restrained on a paediatric ward in desperate circumstances which meant the ward being closed to other patients, traumatising staff and disrupting treatment for other children  . As he had done before, MacDonald J directed that his judgment be sent to the Secretary of State for Education, the Children’s Minister and several other notables.
In the case of G, the Secretary of State for Education did send representation to the hearing, but also wrote to the Court pointing out that the provision of sufficient accommodation to meet the needs of looked after children is a local authority duty and that the DfE were allocated £24 million in the 2021/22 spending review to start a programme to maintain capacity and expand provision in secure children’s homes.
On 30 July 2021 the Supreme Court dismissed an appeal by a 15 year old girl who argued that the use of the inherent jurisdiction in these circumstances is not permissible  . The Court described the procedure as ‘an imperfect stop gap’ that was nonetheless a necessary tool for local authorities unable to find appropriate placements. Lady Black regretted that its use had become so frequent and expressed her ‘deep anxiety that the child care system should find itself struggling to provide for the needs of children without the resources that are required’. The Court also pointed out that in making these ad hoc arrangements providers would be setting up unregistered children’s homes. It is a criminal offence under the Care Standards Act 2000 to operate an unregistered children’s home.
There is a desperate need for residential homes that can contain traumatised children with extraordinarily complex needs in a secure and therapeutic placement. At the moment we have:
- A chronic shortage of placements in secure accommodation (53 children applying for one place in Re G);
- Children’s mental health beds being left unused because of a shortage of staff (5 unusable beds in each of 2 out of the 3 Tier 4 units for girls 
- The High Court being asked to approve ad hoc arrangements when there are no real alternatives available;
- The High Court having to approve placements which will inevitably involve a placement provider committing a criminal offence;
- From 9 September 2021 these ad hoc arrangements will become unlawful for children under 16, and the High Court cannot authorise a local authority to act in a way that is specifically prohibited by Regulations.
The amendments to the Care Planning Regulations were made with the laudable aim of preventing local authorities from placing children in ‘semi-independent’ accommodation where they are exposed to risks of harm, drug dealers and sexual exploitation. A, presumably unintended, consequence of their introduction will be to prevent bespoke arrangements for children with highly complex and unique needs. There is no guidance on what local authorities are supposed to do to care for these children from 10 September onwards…
Alexandra Conroy Harris, Legal Consultant
Policy, Research and Development Team, CoramBAAF