Anne Longfield warns hundreds of vulnerable ‘invisible children’ in England are being locked away without any legal protection

• Research reveals the number of children locked up using the ‘inherent jurisdiction’ of the High Court, which denies them the same safeguards as other children locked up by the state, has tripled over the last three years

• Children’s Commissioner warns that cases could be the ‘tip of an iceberg’ with an unknown number of other children locked away without any court authorization for them to be deprived of their liberty – some of them potentially illegally

• Children’s Commissioner intervenes in Supreme Court case about the use of inherent jurisdiction to highlight concerns about legal protections in place for children

Anne Longfield, Children’s Commissioner for England, is today publishing a report shining a light on some of the most vulnerable children in the country – those children who are living ‘behind closed doors’, including those locked up in secure hospitals, prisons or children’s homes.

The report, “Who are they, where are they?” shows that in the official figures there are 1,340 children ‘locked up’ in various institutions. On 31^st March 2020 there were:

• 715 children in youth custody
• 81 children placed in Secure Children’s Homes for their own welfare
• 544 children detained in hospitals under the Mental Health Act.
• For the first time it shows what types of ward children were detained on, with 237 children in secure mental health wards and psychiatric intensive care units

The report shows that although children end up in different types of setting, they often have very similar and overlapping needs – nearly half the children in custody have been in care, and three quarters have mental health needs. Half the children locked up for their own welfare have mental health needs, and 80% have also been charged with a criminal offence.

The report also warns that children continue to be required to fit into different types of settings, run by different Government departments with different priorities, rather than have settings which can adapt to the needs of children. There is also a worrying disparity in which children end up in which types of setting – Black children (especially boys) are far more likely to be in youth custody, and if they do end up in mental health wards are more likely to have been sent there by a court. Girls are much more likely than boys to be in mental health wards – three quarters of the children detained under the Mental Health Act are girls.

While there is some good news that the numbers of children in youth custody has fallen, the report reveals concerning evidence of a growing number of children who are locked up but who do not appear in any official statistics and who are not living in places designed to hold children securely. Although these children are incredibly vulnerable and can be at risk of being sexually or criminally exploited or harming themselves, often there is no space in a secure children    ’s home for them to be kept safe. As a result, councils are having to come up with makeshift arrangements like flats or hostels or even caravans. One child was living in a holiday home but had to move out for a weekend as it had already been let out to holidaymakers. The report shows how there are children who are being deprived of their liberty in settings which are inappropriate for their needs, and are not even registered with Ofsted.

The Children’s Commissioner is concerned that these children appear to be at risk of significant harm because they are not living in accommodation that can hold them securely because none is available.

The Children’s Commissioner shows that in 2019/20, 327 children in England were deprived of their liberty through the ‘inherent jurisdiction’ of the High Court. This is used by courts when no piece of legislation provides a way for a child to be deprived of their liberty, but a judge rules that it is necessary to keep them safe. The report also reveals number of children locked up through the ‘inherent jurisdiction’ has tripled since 2017/18.

The report explains how because the inherent jurisdiction is used when no other legislation can be used to deprive a child of liberty, there are no regulations and no government guidance that clearly sets out when and how the inherent jurisdiction should be used. As a result, the Children’s Commissioner is concerned that children placed under the inherent jurisdiction of the court do not have access to the same legal safeguards as children placed under the Children Act. For example, a child is only entitled to an annual review rather than reviews at 3 months and then 6 monthly, which is the requirement under the Children Act. 

The Children’s Commissioner is also concerned that without any data collected on where these children are living it is harder to ensure that they are in appropriate and safe conditions.

For this reason, the Children’s Commissioner, with the support of Leigh Day, Victoria Butler-Cole QC, Alex Ruck Keene and Edward Bennett, recently intervened in a Supreme Court case about the use of the inherent jurisdiction in order to highlight her concerns about the legal protections in place for these children, and the appropriateness of their accommodation. The intervention is published alongside this report and the judgement is awaited.

The report also warns that those children where a court order is in place may just be the tip of the iceberg when it comes to children who are locked away but do not appear in official statistics.

The Children’s Commissioner’s Office helpline Help at Hand service has been alerted to several children living in situations which clearly amounted to a deprivation of liberty, but where no court authorisation was in place. For example, a 14-year-old boy who was in care but because his local authority was unable to find a home for him, was living in a campervan under 3:1 supervision with staff on 72 hour shifts. Although this amounted to a deprivation of liberty, the council did not appear to have applied for an authorisation from the court.

The report also details how the Children’s Commissioner’s Office visited 13 children’s homes, residential special schools and mental health wards and found significant concerns about children who appear to be deprived of their liberty illegally, without the appropriate legal safeguards in place.

In all these settings visited, there were children who needed a high level of care because of the trauma or difficulties they had experienced. Many of the children were living with high levels of restrictions in place. One of the residential special schools, for example, used restraints such as ‘safe space’ beds which are fully enclosed zipped beds which a child could not get out of without help. They also used lap belts on wheelchairs and various types of walking harnesses. 

The Children’s Commissioner raises concerns in the report at the constant level of supervision, the inability of children to leave, and the lack of clarity about who was providing consent or authorisation for the arrangements. Often children were not allowed to leave the home, even to go into the garden, without staff supervision and knew that police would be called if they did.

One child told the Children’s Commissioner’s Office:

“I can walk around the bit of garden but staff come with me, they follow you everywhere, it feels like a jail. Even if I am really calm, I can’t go out on my own”

Anne Longfield, responding to the report, said:

“We should be shocked that there are a significant number of extremely vulnerable children, who professionals have decided are in need of one of the hundred places in Secure Children    ’s Homes in the country, who instead end up in places that are not even registered with Ofsted, let alone registered as secure homes.

“I am very concerned that that we do not even know for sure the number of children who are being locked up through the use of ‘inherent jurisdiction’, or where they are living. It is likely that some of these children are living in places that are completely inappropriate, or being locked up without any legal authorization. These are very vulnerable children, often at risk of harming themselves or others. It is astonishing that there is not capacity in the children’s social care system to provide them with the care they need, or the legal protection.

“As part of its review into children’s social care, the Government must ensure that a new integrated secure model of care is developed, to urgently increase the number of specialist settings that can safely care for children. Ministers should also consider whether new legislation is required to protect children who are being deprived of their liberty in non-secure settings.

“The review should also look at how we prevent children being locked up in the first place. I want to see a greater emphasis on early help and a children’s social care system that does much more to keep children in the community, alongside better investment in specialist care settings so that fewer children end up needing secure care.”

Anne Moore, solicitor at Leigh Day, who has been instructed by the Children’s Commissioner, said:

“Currently children who are placed in Secure Children’s Homes are subject to certain protections prescribed by law – for example the placements have to be registered and there are regular inspections and checks. However, there is a shortage of such homes and as such some children are being placed in unregulated placements, some of which are extremely unsuitable. 

“Placing children in accommodation that is not a secure children’s home currently falls out of the statutory regime and so they do not have the same safeguards that other children do. This means children are being deprived of their liberty without authorisation and without proper checks and safeguards in place.”