Children subject to deprivation of liberty (DoL) orders

Nuffield FJO has released a welcome briefing “Children subject to deprivation of liberty (DoL) orders” which reflects the 12 months pilot phase of the national DoL court.

Sadly, as all practitioners who deal with this type of case will know, DOLs orders are made in respect of highly vulnerable children, with complex needs. The report found that the reasons for their “deprivation” are multilayered, usually long standing and the subject children often have a long history of social service intervention, trauma and/or there are overlapping issues of criminal exploitation, behavioural issues, sexual abuse and exploitation and poor mental health.

The statistics are stark and  depressing: Nuffield notes there has been a 462% increase in DoLs applications over the three years to 2021; in 2021 there were 1249 applications; between June 2022 and June 2023 there were 1381 applications made; and within the same year approximately 22% of all applications involve children aged 13 or less; and 44.6% of those applications that year involved children aged 14 or 15 years old.

It is  interesting that  that despite this rise, the number of children detained under Secure Accommodation Order, mental health orders or in  in youth custody has actually decreased. Nuffield notes that it is perhaps better that children at risk of serious offending are being supported through Children’s Services rather than the criminal justice system but the report raises serious questions about the repeated failures of successive government agencies and state bodies failing these children and the use of unregulated, unsuitable “illegal” placements (page 4 “Key Points”).

Nuffield questions whether DoLs is the appropriate remedy where Courts are dealing with children with acute and persistent mental health difficulties and/or those whom have suffered sexual abuse and/or neglect.

The report further details the statics, namely approximately half of the children subject to DoLs have repeated missing episodes but unfortunately the reasons for this are as yet unexplored and/or provided for within the current system. Nuffield suggests what needs to be urgently looked at is the reason why these children are going missing. It is suggested that without understanding the  underlying reasons  for a DoLs order will always be somewhat mysterious and difficult to prevent

The report concludes that, it appears to the writers, the need for DoLs orders are usually are a reflection of the state’s failure to intervene, support and protect  a child sooner, for longer and more intensively. This is particularly apparent where as the report says “In around a quarter of cases, a deprivation of liberty was sought primarily due to a need to monitor and supervise a child to manage their care needs and/or to place restrictions on their liberty to manage challenging behaviours that were linked to the child’s disability.”

No court wants to be making orders authorising the “locking up” of children.  DoLs orders are not a silver bullet. It’s a  sticking plaster at best. The detailed analysis of what the longer term outcomes are for children who have been subject to DoLs orders and vitally where investment is desperately needed so that the numbers of children being deprived of their liberty can be greatly reduced is awaited.

Of major concern to all remains the lack of clarity as to what is causing this rise, as Sir James Munby, in 2017 said, unless urgent action was taken the State ‘will have blood on [its] hands’ (Re X (A Child) (No 3) [2017] EWHC 2036 (Fam)) and as suggested by the authors of the Nuffield report, as well as directors of children’s services, Ofsted, and children and family rights groups. Sadly, some 6 years on this remains a grave concern.

Children subject to deprivation of liberty orders - Nuffield Family Justice Observatory

20th Sep 2023

Celeste Irvine

Call 2007

Helen Nettleship

Call 2009