high court judge authorises unregulated placement for 15 year old girl

With the ban on unregulated placements coming into force this month, a high court ruling has made the changing landscape even more confusing.

High Court Judge, Mrs Justice Knowles, authorised an unregulated placement for a 15 year old girl who was experiencing significant ”psychological and emotional distress” who was being supported in a side room of an adult mental health ward for her own safety.

In the ruling the judge stated that: ”although arrangements for her care in the community have been made which I am persuaded to authorise, those arrangements are likely to be short lived because of changes to the regulations concerning the placement of children in unregistered and/or unregulated settings which are due to come into force on 9 September 2021. Thus, this court will, once more, need to consider the arrangements for W’s care in mid-September.”

The girl, who is known as W, has a significant history of self-harm and behaviour issues was deprived of her liberty in temporary accommodation with a CQC registered agency providing her care.

W was being supported in a room in an adult surgical ward and was presenting with distressing behaviour. Several attempts were made to move her back to her mother’s home, however her self-harm behaviour escalated.  Several mental health assessments were completed, all of The local authority proposed a temporary solution in which W and her mother would be moved to rented accommodation, supported by two care staff  with the mother retaining parental responsibility. The LA felt this would be in W’s best interest and with her mother retaining parental responsibility would mean there would be no need to register as a Children’s Home.

This plan was rejected by the court as the mother stated W was beyond ‘parental control’ and did not agree to the plan. A interim care order was granted and no other suitable, registered accommodation was available to meet the needs of W.

The only available option was to support W in temporary rented accommodation with the support of the CQC registered care staff. The judge stated that although registered with the Care Quality Commission, the current arrangements would likely need to be registered with Ofsted.

It is illegal not to register as a children’s home in such circumstances. However, in July, the Supreme Court ruled, in Re T, that the inherent jurisdiction could be used to authorise an unregistered placement despite this, as we looked at in last month’s bulletin.

Mrs Justice Knowles ruled, that inherrant jurasdiction could be used in such as circumstance as this given that there were no other viable options.

She stated that:
”Whatever the difficulties with registration are, the local authority has no other option for W. There is no secure accommodation provision available and, even if such accommodation were available, the professional consensus is that it is not in W’s best interests to be so placed. The hospital evidence is that W is being harmed by remaining in hospital notwithstanding the difficulty the hospital experience by reason of her occupancy of an adult surgical bed. I accept the urgent need for W to move from the hospital to a placement created with her particular needs in mind. It is unfortunate that the temporary accommodation in which she will live is only available until 6 September 2021 and that W will have to move from that date to other accommodation which the local authority accept it needs to find as a matter of considerable urgency. I am also satisfied that the restrictions on W’s liberty are both necessary and proportionate to meet her welfare needs”

Judge Knowles however that:

That is, regrettably, not the end of the matter. This placement will not only be potentially illegal but will be unlawful with effect from 9 September 2021 because of the amendments contained within the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 (SI 2021/161).”

And ordered that the case return to court mid-September for review in line with the amendments. Judge Knowles stated that “Whilst there are obvious concerns about placing children in unregistered accommodation, it will be immediately apparent that finding or creating a bespoke placement for a young person who urgently needs care will be considerably harder following 9 September 2021.”

The amendments coming into force on September 9th are the DfE’s answer to tackling the shocking stories of children being placed in inappropriate accommodation such as tents, barges and caravans.

There has been some backlash to this plan from children’s organisations in the grounds that it excludes 16 and 17 year olds, leaving them incredibly vulnerable. One children’s charity ‘Article 39’ has been given rights to challenge the ban in the courts.

Local authorities are also fighting the ban as they say it will make it increasingly more difficult to arrange bespoke placements for children who have very specific needs, a sentiment echoed by Mrs Justice Knowles.

Mrs Knowles said W’s situation also raised the “depressingly familiar scenario” to family court judges of young people missing out on the therapeutic treatment they needed because their emotional and behavioural difficulties were the result of trauma, not a mental health condition.

Given the far reaching implications of this case the High Court Judge has invited the education secretary, the Children’s Commissioner for England, Ofsted and the CQC to be represented at the next hearing.

You can find the full court paper here

We will bring you further updates on this case in next months’ bulletin.

Do you have any questions about unregulated accommodation, or need advice or support in this area? Then do give us a call or send us an inquiry and we can see what we can do to support you.

This article was written by Lucy Reynolds, Dialogue Consultant, and was adapted from the original article on Communityincare.co.uk