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Britain’s Judges Are Sick Of Locking Up Children Who Just Need Help. Why Has Nothing Been Done?

The BBC recently reported extensively on the rising and excessive use of deprivation of liberty (DoL) orders on vulnerable children. What was described is shocking and the stories they reported are heartbreaking. But this scandal is nothing new.

For many years, judges have been calling for urgent action to address the shortage of suitable care for children with significant mental health and behavioural needs, at the same time as they are being compelled to make DoL orders.

When a place for a child cannot be found in a secure children’s home, a mental health ward or some other regulated therapeutic setting – usually because their needs are too complex, or there are not enough beds available – the high court can use the power under its inherent jurisdiction to deprive a child of their liberty in an unregulated placement.

A deprivation of liberty order is a draconian measure only ever intended to be used as a last resort. They have now become the norm. That they are being used in such numbers – 1,368 applications were made in 2023 – is a sad reflection of the catastrophic failure to provide suitable care for children with complex needs. Government has failed to address the dire lack of suitable provision in any meaningful and effective manner.

Almost seven years ago, in August 2017, as president of the family division, I had to do what little I could for X, a 17-year-old girl who regularly self-harmed and had made many attempts to take her own life. She urgently needed a place in a suitable therapeutic unit, but none could be found.

In a public judgment, I said: “What this case demonstrates, as if further demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with.

“We are, even in these times of austerity, one of the richest countries in the world… It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms…

“If this is the best we can do for X, and others in similar crisis, what right do we, what right does the system, our society and indeed the state itself, have to call ourselves civilised? The honest answer to this question should make us all feel ashamed.”

I went on: “If… we, the system, society, the state, are unable to provide X with the supportive and safe placement she so desperately needs, and if, in consequence, she is enabled to make another attempt on her life, then I can only say, with bleak emphasis: we will have blood on our hands.”

As reported by Tortoise Media last year, X ended up locked in a high-security mental health hospital. Any help she received came far too late to save her. And seven years on from my judgment, the situation for other children countrywide is even worse than I had dared to fear.

In a case called Re T in July 2021, the supreme court called it a scandal. In January 2023, in a case called Re X, the current president of family division, Sir Andrew MacFarlane, in another published judgment drew “public attention to the very substantial deficit that exists nationally in the provision of facilities for the secure accommodation of children”.

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He commented: “Despite the regular flow of judgments of this nature over recent years, it is, at least from the perspective of the experienced senior judges who regularly deal with these cases, a matter of genuine surprise and real dismay that the issue has, seemingly, not been taken up in any meaningful way in parliament, in government or in wider public debate.” .

Over the past seven years, there have been dozens and dozens of published judgments often expressing judges’ concerns in unusually strong language. These judgments make grim reading. They paint a picture of a system unable to cope with the rising numbers of young people with emotional and behavioural difficulties, almost always born out of trauma or neglect in childhood – a frustratingly well-trodden path leading to challenging behaviours, substance misuse, self-harm and the risk of sexual and criminal exploitation.

Desperate children are being detained, cut off from their families, with no contact with the outside world and without the therapeutic treatment they need so badly – as told in first-hand accounts to the BBC.

The voices of concerned judges, frustrated at the lack of options available to them, come through loud and clear. What have these judgments achieved? Nothing.

Journalists have been reporting on this for years. In May, there was a very disturbing account in the Observer about the appalling conditions in which “Becky” is being detained. What has all this reporting achieved? Nothing.

For the children who are being so gravely damaged by the state, and for their families who are being driven to despair, it must be a matter of indifference if the responsibility for this crisis lies with central government or local government or, as I would suggest, with both – though most of the responsibility rests with central government. Be that as it may, what of any substance and value has the state and government, done? Nothing.

This is not a hidden scandal. So, alongside the failures of state and government, society as a whole shares responsibility for failing to demand that something is done.

If for too long the scale of the problem was largely unknown until the Nuffield Family Justice Observatory started collating and regularly publishing the data, the existence and nature of the problem has been no secret. Judges and journalists have been telling the public about it for years. Thanks to them, these young people are not hidden from view. But they are a long way from receiving the care they need.

When a system is routinely locking up vulnerable children in highly inappropriate settings because they are too difficult to look after, something is clearly going very, very wrong. It is yet another shocking moral failure – by the state and by society.

Is it too much to hope that it might be up for discussion in the election?

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