Public Law Update – February 2021
Index of Cases
- Lancashire County Council v G (No. 4) (Continuing Unavailability of Regulated Placement) [2021] EWHC 244 (Fam) – the High Court considering placement options for a child requiring secure accommodation pursuant to S.25 CA 1989 where no regulated placement was available anywhere in the UK.
https://www.bailii.org/ew/cases/EWHC/Fam/2021/244.html
- Lancashire County Council v G (No. 4) (Continuing Unavailability of Regulated Placement) [2021] EWHC 244 (Fam)
Judgment of Mr Justice MacDonald.
The High Court considered the case of G, a 16 year old with significant emotional and behavioural difficulties. The LA applied for secure accommodation for G, pursuant to S.25 CA 1989. There was no available regulated placement in the whole of the UK. The LA invited the Court to endorse deprivation in an unregulated placement for a temporary emergency period of 28 days whilst a regulated placement was identified. The matter came back before the High Court six months later, there still being no regulated placement available. The Court was asked, again, to approve an unregulated placement for G.
Background: G was born in 2004 and was 16 years old at the time of the hearing. In April 2010 the LA applied for a Care Order. Final orders made were for G to reside in foster care with her siblings. This plan was implemented and G remained with her foster carers from the age of 4 years until the age of 16 years. Since January 2020, G had been hospitalised 20 times due to the risk of self-harm and suicidal ideation. She reported hearing voices and was diagnosed with ADHD. G’s behaviour became increasingly more worrying. She was detained under s.2 of the MHA 1983; she damaged property, harmed herself, assaulted staff and absconded.
On 24 August 2020, G knocked at the staff door with a ligature around her neck. G collapsed, the ligature was cut off and an ambulance called. On 25 August 2020, G made another attempt on her own life. On 28 August 2020, the LA applied for an order under the inherent jurisdiction authorizing deprivation of G’s liberty. On 7 October 2020, the LA applied for a secure accommodation order pursuant to s.25 of the CA 1989. G’s a mother was not represented and G’s father was deceased.
On 23 October 2020, the matter came before the High Court in circumstances where G had been admitted onto an adult mental health ward (due to a lack of CAMHS psychiatric intensive care beds). G was due to be discharged at 10.30am that morning. The LA contended that G was in need of an urgent secure placement. There was no such bed available anywhere in the UK.
The only placement available for G was in an unregulated placement, which had already informed the LA that they were not willing to apply to Ofsted for registration. The LA were compelled to advance this unregulated placement as the only available option for G. The CG was unable to support the placement but recognized that it was the only viable option.
In the circumstances G, a vulnerable young woman with multifaceted difficulties and at high risk of serious self-harm or suicide remained inappropriately placed on an adult mental health ward. The Court acknowledged that, if discharged from her current detention under s.2 of the Mental Health Act 1983 that today, she would have nowhere to go unless the court authorised the deprivation of her liberty at an unregistered placement.
The stark choice faced by the court was to refuse to authorise the deprivation of G’s liberty in an unregistered placement, which would result in her discharge into the community where she would almost certainly cause herself possibly fatal harm, or to authorise the deprivation of G’s liberty in an unregistered placement that all parties agreed was sub-optimal from the perspective of her welfare because that unregulated placement is, quite simply, the only option available.
On 23 October 2020, having considered the options available to the Court, Mr Justice MacDonald “wearily” authorized the continued deprivation of G in an unregulated placement that was not fully equipped to meet her needs, because the Court “had no other option but to do so” [32]. He did so as a temporary emergency placement for 28 days whilst a regulated placement was identified.
A transcript of the judgment was transmitted to the Rt Hon Gavin Williamson CBE MP, Secretary of State for Education, Vicky Ford MP, Minister for Children.
The matter came back before Mr Justice MacDonald on 4 February 2021. G remained in the unregulated placement.
G’s emotional state and behaviour had continued to deteriorate. She had made further attempts on her own life by attempting to strangle herself on numerous occasions, she had inflicted wounds to her arms and legs with glass, had damaged property and had absconded. G had also ingested the liquid from an E-cigarette and had swallowed a razor blade, screws and batteries. G was starting to refuse food intake and was making herself sick. Dr Ahmad, a Child and Adolescent Psychiatrist with ELCAS assessed G as showing clear indications that she will develop a personality disorder and will remain vulnerable to acting out and deliberate self-harm in the future.
A report was commissioned from Dr Oppenheim, Consultant Child and Adolescent Psychiatrist. That report was received on 9 December 2020. Dr Oppenheim concluded that the source of G’s difficulties is very complex from a diagnostic and treatment perspective. Within that context, Dr Oppenheim recommended either a secure placement with intensive CAMHS provision or a tier 4 mental health bed with low secure services, which could only be achieved through an adult mental health referral pursuant to section 3 Mental Health Act 1983. At the time the report of Dr Oppenheim was received, G was again admitted to hospital where an x-ray had revealed several coins in her stomach as well as what looked like a drawing pin.
Six months and eleven court hearings on from the proceedings being issued in August 2020, the position remained that there were no regulated non-secure placement anywhere in the jurisdiction able to take G.
Once again, the binary choice forced upon the court was to refuse the continued authorisation of the deprivation of G’s liberty in an unregulated placement, which would result in her discharge into the community where she would almost certainly cause herself serious and possibly fatal harm, or to authorise the continued deprivation of G’s liberty in her current unregulated placement. This was a placement that all parties agreed was not able fully meet G’s needs and which was becoming more and more precarious.
In his judgement, Mr Justice MacDonald stated the following [32] “I once again and wearily must authorise the continued deprivation of G in an unregulated placement that is not fully equipped to meet her complex needs by reason of the fact that I have no other option but to do so. I make clear that I consider that I can say that the placement is in G’s best interests only because it is the sole option available to the court to prevent G causing herself serious and possibly fatal harm. Even then, it is clear that the placement is increasingly struggling to achieve even that limited goal. As has been the case each time this matter has come before me in the past number of months, I make the decision I do because I am left with no choice.”
“In this case, I fear it is increasingly easy to chart the likely course for G over the next number of weeks and months having regard to the evidence that is before the court if a regulated placement capable of meeting fully G’s needs is not found. The professionals are increasingly concerned with respect to G’s regular attempts to harm herself and for the continued viability of what is already an unsuitable placement for G. G continues to swallow dangerous objects and to tie ligatures around her neck. Within this context, whilst my judgments to date are comprised of the mournful accounts of the self-harming behaviour by which G expresses her acute and enduring emotional pain, I am increasingly worried that, absent a suitable placement being found, it will be the sad responsibility of this court to deliver a judgment that records with respect to G a greater tragedy still.”
[The Government has since produced a Consultation Paper, banning unregulated accommodation for vulnerable children under the age of 16 years – https://www.gov.uk/government/news/unregulated-accommodation-banned-for-vulnerable-children-under-16]
