Wed, 02 Feb 2022
This article is written by Mark Jones who is a member of the Family Group at No5 Barristers' Chambers
A practical guide to authorisations of unregistered placements and DOLS applications
The inspiration for this article is twofold; firstly, an engaging talk on the subject matter delivered by HHJ Rowland which I recently attended, and secondly, a string of recent cases on which I have been instructed (for local authorities, parents and children’s guardians). It should be read as a practice-based update to an earlier article written by my colleague, Laura Vickers, which offers an in-depth legal analysis of the matters raised.
The inherent jurisdiction
This article focuses on the use of the High Court’s inherent jurisdiction to protect children and young people - specifically applications for authorisation of an unregistered placement and orders depriving children or young people of their liberty (colloquially referred to as “DOLS orders”). Such applications are heard solely in the High Court. For clarity, the inherent jurisdiction is not the focus of this article, and a level of familiarity with its usage is presumed.
Authorisation of unregistered placements with DOLS
It is trite to state that local authorities face difficulties when attempting to provide secure accommodation for children and young people. The shortage of such placements results in fierce competition for a small number of highly sought-after specialist placements. The problem is not new and has led to a sharp rise in the number of applications for authorisation of unregulated placements with DOLs provisions under the inherent jurisdiction. Sir James Munby, when President of the Family Division, described the situation as a “scandal” (Re X (A Child) (No 3) [2017]). This is one example of the many cases where the issue has been highlighted by senior members of the judiciary.
So, what legal remedies are available if a child or young person’s welfare requires the confines of secure accommodation, but no such placement is available? Hint - the clue is in the title.
In the case of Re T (A Child) 2021 UKSC 35, the Supreme Court held that, where an unregulated placement which deprives a child of his or her liberty is the only practical option available to the local authority, the inherent jurisdiction could be used to declare such a placement lawful. The rationale for this is obvious, it is the balancing exercise between the young person’s Article 5 rights and the duty imposed on local authorities to safeguard children’s welfare. For those looking for a more detailed analysis of Re T, I would direct your attention to Laura’s earlier article.
Recent developments
That may seem straightforward, but practitioners should be mindful of the developing nature of this important area of children’s law. The introduction of the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021, specifically Regulation 27A, has cast doubt on the legality of such authorisations. In the interests of brevity, I will not repeat the provisions of Regulation 27A, however I would advise those interested in this area to consider them in detail.
So, where does that leave us today? In TMBC v AM & Ors (DOL Order for Children Under 16) [2021] EWHC 2472 (Fam), Mr Justice MacDonald concluded that, notwithstanding the aforementioned regulations, it remained open to the High Court to authorise the deprivation of liberty in an unregistered placement. MacDonald J further observed that the unavailability of a regulated placement would constitute the conditions of ‘imperative necessity’. Further, MacDonald J envisaged that, in certain circumstances, notwithstanding the availability of a regulated placement, the Court may authorise the use of an unregulated placement following an overarching best interests analysis. An appeal against this decision was recently dismissed by the Court of Appeal, but practitioners should remain aware that the issues raised within this article remain live, both legally and politically.
Practical points to consider
Firstly, in such applications the Court is often faced with an inadequate or unsatisfactory placement, but an alternative which is far worse. This can often lead one to apply a “lesser of two evils approach”, however, it is important not to lose sight of the legal test to be applied - that is the well-established principles of welfare, proportionality, and necessity. Particular attention is drawn to Re T in this regard.
Secondly, procedure matters. Re T sets out a comprehensive list of procedural requirements which should be adhered to. This centres around the issues of proportionality and necessity and the need for the Court to scrutinise the continuation of such invasive orders.
Thirdly, as is often the case in family matters, the outcome is highly fact dependent. There are numerous examples of judges embarking on the difficult task of conducting a welfare analysis, particularly when faced with two unsatisfactory outcomes. A flick through some of the most recent authorities offers a useful insight into the difficulty of the exercise upon which the Court embarks.
Fourthly, the necessity of precision when drafting DOLS provisions should not be lost. Owing to the invasive nature of DOLS orders, practitioners should expect the Court to undertake take a robust and scrupulous approach to their drafting. For example, it is not unusual to see draft orders containing provisions such as ‘the authorisation to use physical restraint if required’. Whilst one cannot be reasonably expected to envisage all scenarios where physical restraint may be required, the terms of the order should be as precise as possible. Is physical restraint to be used only when threatened with physical violence? Would it cover instances where the young person attempts to harm his or herself? Would it be used in instances where the young person attempts to abscond? If the young person successfully absconds, are the provisions intended to cover the successful recovery of the young person? This is far from an exhaustive list, but I hope it offers an insight into the practical questions that should be asked when reviewing DOLS provisions. This is important for all parties, but most of all, for the young person – after all, it is important that they have a clear understanding when restraints may be used against them.
Finally, and perhaps most importantly, a DOLS order is a permissive order which authorises the use of restrictions on liberty. It is a point which must not be forgotten. The presence of a DOLS order permits, but does not require, the use of restrictions. A DOLS order is a fundamental infringement on a child or young person’s Article 5 rights, often in circumstances where the child hasn’t engaged in any criminal wrongdoing. The issues of proportionality and necessity must not be forgotten by lawyers, social workers, guardians, or those working under the provisions of such orders.
