Children’s Commissioner defends court safeguard

Dame Rachel de Souza will have her say in an important case to be heard on 5 and 6 February at the Royal Courts of Justice. As an intervenor in the appeal against a ruling in the case of Re J she will say in her opinion the courts must retain their role in authorising care arrangements for children in care if they will amount to a deprivation of the child’s liberty.

The High Court ruling stated that where a child is subject to a Care Order, a local authority does not need to apply to the High Court to authorise care arrangements. Instead, the local authority, the corporate parent, can itself authorise the care arrangements which deprive the child of their liberty. However, these arrangements are widely acknowledged to be often inappropriate, for example when children are chemically restrained in hospitals or kept in holiday rentals, which the Children’s Commissioner says must be kept in check by continuing the role of the courts.

Before the High Court made the decision in the case of Re J, local authorities had to always apply to the High Court for authorisation of care arrangements if they would mean depriving a child of their liberty. All the parties in the case of Re J (J’s Children’s Guardian, Bath and North East Somerset District Council, and J’s parents) say that although the care arrangements approved for the child at the centre of the case are in his best interests, it is still wrong that the council could impose arrangements which deprive a child of their liberty without the court’s approval.

The Children’s Commissioner agrees with this position, and as an intervenor in the appeal against the ruling, she also plans to say the ramifications of the judgment are profound. The Commissioner is represented by Anna Moore and Sophie Wells of Leigh Day, who have instructed Stephen Broach KC, Jake Thorold and Santosh Carvalho in the intervention.

Children’s Commissioner Dame Rachel de Souza said restricting a child’s liberty is one of the most significant interventions the state can make. She stated that too often these decisions are dictated by local resource or capacity rather than by the individual needs of the children who are some of the most vulnerable in our country. She emphasised that at the heart of this case is a child who deserves a voice in the decisions being made about his life, like so many other children who have told her they want the chance to be truly heard by the adults in their life. She asserted that where depriving them of their liberty is necessary to keep that child safe, it must have the independent oversight of a judge so that there is accountability in the quality of the care they receive. She warned that the judgment in this case risks removing this important scrutiny in children’s lives and worsening the deeply concerning conditions far too many children are enduring.

Dame Rachel will share with the court first-hand reports from children in care who are subject to deprivation of liberty orders, as gathered through unique research by her office. These illustrate the importance of the court having oversight of care arrangements which deprive children of their liberty, even where there is no dispute about the need for the child to be confined. Children to whom the Commissioner has spoken expressed a clear desire to be heard, understood, respected and consulted about decisions which have an impact on their lives, as set out in Article 12 of the United Nations Convention on the Rights of the Child.

She will also give examples of children for whom court-authorised deprivation of liberty orders have led to them being moved to accommodation much better suited to their needs and well-being. The Commissioner’s Help at Hand team, which supports the Commissioner with research and policy, recently told the Family Court of the case of a child, ‘Christopher’ who was housed for a year in a holiday rental while his local authority looked for a permanent placement for him. The local authority resisted calls by Help at Hand for a deprivation of liberty order from the court on the grounds that the placement was temporary. The Commissioner believes that without the court’s oversight of the deprivation of liberty order for Christopher, he would have been kept at the holiday rental for much longer. Since he was moved into bespoke accommodation, the number of restraints Christopher was subjected to dropped dramatically.