Factors behind the sharp growth in deprivation of liberty orders

Concerns continue to grow over the rise in the use of deprivation of liberty (DoL) orders, which allow local authorities to place restrictions on vulnerable children’s movements and freedoms.

Earlier this year, the Nuffield Family Justice Observatory (NFJO) published analysis showing the number of DoL order applications had risen 462 per cent between 2018 and 2021 (see graphics).

New figures published by the Observatory in November show that for the four-month period from July to October 2022, 459 applications for DoL orders were made. This represents an average monthly rate of 116 applications, more than twice the rate of last year and 11-times that of 2018/19 (see graphics). At the current rate, it seems likely that 2021’s total will be exceeded in the second half of this year alone.

Court applications

Since July, councils have applied to the National Deprivation of Liberty Court for orders. Prior to that, authorities applied to the High Court. Previous years’ figures were collected by Cafcass but the number applied for in the first half of 2022 have yet to be published so it is unclear if the current rate of growth is linked to the creation of the national court, which is based at the Royal Courts of Justice.

While there does appear to be a significant rise since July, Alice Rowe, researcher at NFJO, cautions against jumping to conclusions.

“There could be different ways of recording applications that explains some of the difference,” she says. “But what we hear from the courts and authorities is that there has been an increase in the last two years.”

Applications in the last four months were made by 120 different local authorities and seven hospital or mental health trusts, indicating the widespread use of DoL orders.

Rowe says the NFJO is doing further analysis of case files to understand the circumstances of children subject to DoL orders and why councils apply for them.

DoL applications are made to “authorise a residential placement of a young person in circumstances where their liberty may be restricted”.

Rowe adds that while there are a range of factors that could be driving this practice a key one appears to be a shortage of beds in secure children’s homes (SCH).

“Local authorities say that at any one time, 50 young people are waiting for a bed in an SCH,” she says. “The children needing to be placed in SCHs have more complex issues which often means homes can accommodate fewer children and so can’t operate at their full capacity.”

This is borne out by data that shows there are 253 approved places in the 14 SCHs in England and Wales, of which 223 are available for placements. However, occupancy levels fell from 72 per cent in 2019/20 to 56 per cent in 2020/21, the lowest since 2010.

Restrictions covered by DoL orders can include locking a young person’s door to prevent them leaving a setting or not being allowed to use a phone or social media. However, it may not specify the type of residential placement, explains Rowe. “A major issue is the number of children placed in inappropriate accommodation such as unregistered settings which have a lack of therapeutic services available,” she adds.

This was an issue identified in a recent report by the children’s commissioner for England, which found that some children deprived of their liberty using inherent jurisdiction – a legal mechanism used to apply for an order – were placed in caravan parks.

“There’s a sense of unease in the use of these orders by judges and local authority managers,” says Rowe. “There is concern about the lack of alternative provision.”

Rowe adds that the evidence and data gathered by the NFJO on how DoL orders are being used can “get a better understanding of who these children are and support a conversation about what care they need”.

Further reading:

• Deprivation of Liberty, review of published judgments, NFJO, March 2022

• Nuffield FJO evidence review, February 2022

• Who are they, where are they? Children’s Commissioner for England, November 2021