Legal Update: Deprivation of liberty orders

Andrew Powell
Friday, June 28, 2024

Barrister Andrew Powell from 4PB explains why the use of deprivation of liberty orders has risen sharpy in recent years and the problems that creates for the children and young people involved.

DoL orders can be psychologically harmful to children. Picture: Irina Polonina/Adobe Stock
DoL orders can be psychologically harmful to children. Picture: Irina Polonina/Adobe Stock

Deprivation of liberty orders are made when the care arrangements for an individual, including a child or a young person, will amount to a restriction on their liberty. The European Court of Human rights has identified three elements that indicate when care arrangements will constitute a deprivation of liberty (Storck v Germany, 2005), these are:

  • The objective element that the person is confined in a restricted space for a non-negligible period of time;

  • The subjective element that the person has not validly consented to the confinement; and

  • The detention being imputable to the state.

When these circumstances arise, an application for an order authorising the deprivation of liberty will be made. There are two types of application: applications for secure accommodation orders under section 25 of the Children Act 1989 and applications for deprivation of liberty (DoL) orders under the inherent jurisdiction of the High Court. Under section 25, welfare criteria must be met before a child is placed in secure accommodation, these are:

  • That the child has a history of absconding and is likely to abscond from any other description of accommodation; and

  • If he absconds, he is likely to suffer significant harm; or

  • That if he is kept in any other description of accommodation, he is likely to injure himself or other persons.

Where the section 25 criteria are not met, or no secure placement is available, a DoL order may still be made under the inherent jurisdiction of the High Court. This means that the court may sanction a child being deprived of their liberty in an unregulated placement.

The deprivation of liberty framework exists to protect vulnerable children and young people and provide a mechanism to keep them safe from harm. There has been a sharp rise in the number of orders granted in recent years - an increase of 462% between 2018 and 2021 based on reported judgments alone according to research by the Nuffield Family Justice Observatory – and 1,300 young people were the subject of them between July 2022 and June 2023. Concerns continue to grow about how effective the current framework is at achieving its protective aims.

Numerous practical problems arise from the use of DoL orders. These include:

Lack of follow-up

Orders depriving a young person of their liberty, particularly those involving an unregulated placement, are usually intended to serve as a temporary measure while long-term suitable arrangements are determined. However, the reality is that there is often a lack of follow-up, leaving young people rendered in a state of limbo, in some cases for many years of their adolescence. For those who do leave placements, there is a paucity of research and evidence about their outcomes and the lasting impact the experience has on them.

Impact on families

In many cases, a deprivation of liberty order is made for a young person as they reach adolescence because their safety is at risk from physical, emotional or sexual abuse. However, among the reported judgments there is a lack of evidence of any support or early intervention for these issues being offered to young people and their families. This is despite the young person often having been known to children’s services from an early age, where if appropriate support had been available, an order may have been avoided entirely. The lack of support at an early stage means the sudden escalation to a DoL order and placement of a young person in a secure setting can be emotionally and psychologically harmful for the young person. Often placements are not located near to the young person’s family, which can also cause a further sense of dislocation or disruption to their family life.

Fitness for purpose

It is well known that there is a significant shortage of available registered placements. The result is that children and young people are spending extended periods of time in suboptimal placements, where access to the therapeutic support needed to make long-term improvements is limited. A false economy exists; the cost of early support and intervention would be far less than the cost involved in using DoL orders. Above all, the greatest risk posed is to young people by the state’s failure to provide appropriate placements. This has the potential to thwart their development as they approach adulthood, thereby depriving them from having the same opportunities as other young people.

What is clear is that the growing number of DoL orders, coupled with the issues around making these orders work, is causing concern for many. Just recently, Sir James Munby, a retired judge who was president of the family division of the High Court, called the current state of DoL orders: “Yet another shocking moral failure – by the state and by society.” It remains to be seen if DoL orders will be changed but it seems there is certainly a growing awareness of the weaknesses of the system – and therefore an appetite for a different approach.

Further reading

Children Subject to Deprivation of Liberty Orders, Alice Row, Nuffield Family Justice Observatory, October 2023

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