Children in England and Wales can be deprived of their liberty for welfare (risks to their safety), youth justice or mental health reasons, and placed in secure children’s homes, young offender institutions, secure training centres or mental health in-patient wards.
Article 5 of the Human Rights Act 1998 provides that ‘everyone has the right to liberty and security of person’ and that includes children and young people. Therefore, a Local Authority that has parental responsibility for a child cannot deprive the child of his liberty without the Court’s authority.
When a place for a child cannot be found in a welfare, youth justice or mental health setting, the High Court can use the powers under its inherent jurisdiction to make a Deprivation of Liberty Order, which gives permission for a child to be deprived of their liberty in an unregulated placement. Earlier this year, Nuffield Family Justice Observatory published research that revealed that in the three years to 2020/21, these applications increased from 108 to 579 per year – a rise of 462%.
In practice a Deprivation of Liberty Order will usually involve restrictions on the child such as 2-1 staffing and supervision, use of restraint, lack of access to money or electronic devices. When deciding whether to make the Order the Court must consider whether the restrictions proposed are necessary, the least restrictive and a proportionate response to the risk of harm to the child which may arise. The Local Authority with parental responsibility must keep the restrictions under review so that they are removed as soon as they are no longer necessary.
Due to the increased number of applications being made for Deprivation of Liberty Orders a National DoLs (Deprivation of Liberty) Court has been created and launched on 4th July 2022. The court will deal with applications seeking authorisation to deprive children of their liberty and will be based at the Royal Courts of Justice in London.
The Nuffield Family Justice Observatory will regularly collect and publish data from the new National DoLs (Deprivation of Liberty) Court in order to better understand why cases are risking and what can be done to better meet the needs of the children involved.
Bromleys have a large team of expertly trained solicitors who can assist you, if you have any questions please urgently contact Hannah Williams by email hwilliams@bromleys.co.uk or call on 0161 694 4156.