A Local Authority v LB & Ors [2025] EWHC 1264 (Fam)

[2025] EWHC 1264 (Fam)Case No FD25C40107
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Date 25 May 2025
Stoke on Trent Combined Court Centre.
Before
MR DAVID LOCK KCSITTING AS A DEPUTY HIGH COURT JUDGE
Between
A LOCAL AUTHORITYApplicantLB, acting by her Guardian (1)RespondentsCB (2)RespondentZB (3)Respondent
Ms Slater (instructed by the Local Authority) for ApplicantMs Nina Skelton of the Smith Partnership for GuardianCB in person. for in personNo attendance by ZBHearing Hearing date: 13 May 2025
[1]I have been asked to make an order permitting the Local Authority in this case to continue to deprive a child, LB, of her liberty. I was not prepared to make the order requested by the Local Authority and set out my reasons in this brief judgment so that the parties (and any Judge who deals with this matter after my involvement) can understand why I declined to make an order[2]LB was born in August 2009 and is 15 years old and she soon will have her 16th birthday. She was originally accommodated by the Local Authority under an agreement with her parents under s20 of the Children Act 1989 but a full care order was made on 6 December 2024. As a result, parental responsibility for LB is now shared between the Local Authority and her parents. The care order was made, in summary, on the basis that her parents could not provide a proper level of parenting support to her because of domestic violence initiated by her father against her mother and the effects of drug taking in the household.[3]LB does not wish to be in care and wishes to return to live with her mother. In December 2024 LB absconded and went back to live with her mother. On 13 February 2025 HHJ Bailey made a recovery order to enable the Local Authority to recover LB and to return her to a placement which was not local to where she lived. On the same day HHJ Bailey, sitting as a Judge of the High Court, made an order permitting the Local Authority to instruct the care provider to put in place arrangements which had the effect of depriving LB of her liberty at the placement. That order expired on 13 May 2025.[4]The C66 application seeking the DOLS order does not specify the basis upon which the Local Authority is seeking the order save for referring to the fact that the Local Authority was also applying for a recovery order. The witness statement by the social worker to support the application for a recovery order states:
“[LB] needs to be returned to her placement as a matter of urgency and up until this point has refused any encouragement to do so by her placement and social work staff. There is also no support by her mother [CB], therefore we respectfully request that the court provide a Recovery Order to allow LB to be returned to her placement as a matter of urgency” this point has refused any encouragement to do so by her placement and social work staff. There is also no support by her mother [CB], therefore we respectfully request that the court provide a Recovery Order to allow LB to be returned to her placement as a matter of urgency”

respectfully request that the court provide a Recovery Order to allow LB to be

[5]A further witness statement was provided by the social worker dated 10 January 2025 which said:
“LB continued to state she was safer in her mother’s care, she had a good routine, was eating better and sleeping better and she had no self-harmed since she had been at home, she was self-harming daily at her placement. LB continued to speak over the social worker by saying her mother was “a lovely hard working woman, I am proud of my mum and what she has done over the last 17 years with 7 children, and she was getting very upset and shouting louder. LB informed she was going to have a shower”
[6]A subsequent statement set out the restrictions that the Local Authority sought to implement and said that their assessment was that these restrictions were “necessary, the least restrictive and a proportionate response to the risk of harm which arise”. It appears clear that the Local Authority was working on the basis that it was entitled to come before the court to seek permission to deprive LB of her liberty on the basis that this was needed to prevent LB from absconding back to spend time with her mother. I also have a letter from LB who very strongly objects to the restrictions that are forced on her and asks me to discharge the order. Her Guardian takes an intermediate position in saying that, at present, she supports the retention of the restrictions but only for a short period to allow the Local Authority to formulate a proper plan so as to allow for their removal.[7]There are 3 relevant issues that arise that, at this stage, mean that I should not make a further DOLS order.

Issue 1: Should s25 accommodation have been explored?

[8]There are statutory provisions which specifically provide for a legal framework that local authorities can use in a case where a child in care absconds from a placement. Section 25 of the Children Act 1989 contains provisions which enable a local authority to apply to place a child in secure accommodation. S25(1) provides: “Subject to the following provisions of this section, a child who is being looked after by a local authority in England or Wales may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (“secure accommodation”) unless it appears—(a) that— (i) he has a history of absconding and is likely to abscond from any other description of accommodation; and (ii) if he absconds, he is likely to suffer significant harm; or(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons” (i) he has a history of absconding and is likely to abscond from any other description of accommodation; and (ii) if he absconds, he is likely to suffer significant harm; or[9]If a Local Authority wishes to place a child in secure accommodation, it can make an application to the court under s25(2) for an order permitting such a placement and the court can authorise the placement for a period of up to 3 months: see Regulation 11 of the Children (Secure Accommodation) Regulations 1991, and thereafter periods of up to 6 months. In this case it does not appear that any consideration was given by the Local Authority as to whether(a) they could make a case that LB met the criteria under s25 or(b) if they did so, whether there was secure accommodation that might be available for LB. Instead, it appears that the Local Authority made an application under the inherent jurisdiction of the High Court to permit the placement provider to impose restrictions on LB which had the effect of depriving her of her liberty. Thus, instead of exploring the statutory framework applied to children who abscond from care and provides protections for the child, this Local Authority appears to have bypassed that statutory framework by applying for an order under the inherent jurisdiction.[10]The question as to whether and if so, in what circumstances children in the care of a local authority can lawfully be deprived of their liberty in placements which are not classified as “secure accommodation” under s25 was considered by the Supreme Court in Re T (A Child) [2021] UKSC 35. In that case Lady Black, who gave the leading judgment said at para 1:
“The background to the litigation is the shortage of provision for children and young people (hereafter generally referred to simply as “children”) whose needs are such that they require special limitations on their liberty. Some of these children need to be placed in a secure children’s home but no place can be found for them in one of the small number of approved secure children’s homes that there are in England and Wales. Some would be likely to meet the criteria for placement in a secure children’s home, but would be better served by highly specialised therapeutic care of a different kind, albeit still with their liberty strictly limited”
[11]I fully accept that there is a desperate shortage of appropriate placements for children who need highly specialised therapeutic care and that there is also, separately, a shortage of placements for children who need secure accommodation for other reasons, notably because they repeatedly abscond from local authority care. Hence, in many DOLS cases, there local authority provide evidence that it believes that a child would meet the criteria for s25 accommodation but, despite conducting a search, the local authority has not been able to locate any appropriate placement for such a child. Equally, in other cases I have dealt with in recent years the local authority case is that it needs a DOLS order to bridge a gap in time until s25 accommodation becomes available or even that a child has such specialist therapeutic needs that s25 accommodation is unsuitable because such specialist therapeutic interventions cannot be provided within s25 secure accommodation. However, none of those factors apply to this case because, as far as I can determine, no steps have been taken by the Local Authority to consider whether LB meets the criteria for s25 accommodation and, if it is thought that she does meet the criteria, whether any appropriate s25 accommodation is available for her. Thus, as a starting point, it does not appear to me that the factual circumstances set out by Lady Black apply in this case.[12]I consider that, consistent with the approach taken by the Supreme Court in Re T, s25 accommodation and DOLS orders should not be seen as alternatives to be used by local authorities at their option. Where a child could be accommodated in secure accommodation under the s25 route, that option should be used where available. Use of the inherent jurisdiction should thus be limited to cases where a local authority provides clear evidence to explain why the s25 statutory framework, with its protections for the child, has not been used.

Issue 2: Is section 100(4) Children Act 1989 satisfied?

[13]In Re T Lady Black identified that, in order to bring a case under the inherent jurisdiction, the court had to give the Local Authority leave under s100 of the Children Act 1989. S 100(4) provides:
“The court may only grant leave if it is satisfied that - (a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and (b) there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm”
[14]The order of 13 February 2025 granted leave under s100 until 13 May 2025 but did not explain the factual basis on which permission was being given. As this was a renewed application for permission under s110, the Local Authority was required to advance a case to explain why it invited the court to reach the conclusion that, if a DOLS order was not made, LB was likely to suffer significant harm. In practice that meant that it needed to show why, in the opinion of the social workers, they had reached the conclusion that LB was likely (namely that this was more likely to happen than not) to suffer significant harm if she was able to leave the placement and return to live with her mother. I accept that the social workers have set out their concerns in general terms about the matters to which she would be exposed if she were to return to live with her mother, particularly if her father is physically present in the house (despite being required not to be as a result of non-molestation order).[15]However, there is no evidence (as far as I can see) that LB suffered any significant level of harm when she went back to living with her mother in late 2024 and early 2025. She is now nearly 16 years old and is rapidly moving towards being an adult and thus her situation is wholly different to that of a much younger and more vulnerable child. It is clear that the social workers have concluded that it would be better for LB to live in a placement where she can develop her life skills and that this part of her education would be unlikely to be delivered at her mother’s home. However, at present, as far as I can determine, the evidence does not explain whether the social workers have asked themselves the questions about how likely it is that LB will be exposed to harm at her mother’s house, what the nature of that harm would be and whether it can be said that it is likely that would suffer substantial harm if she was not prevented from returning to live with her mother.[16]Lady Black made it clear at paragraph 109 of Re T that the inherent jurisdiction cannot be invoked unless this condition is met. It therefore seems to me that the court ought not to make a DOLS order unless this issue has been specifically addressed in the evidence. I consider that evidence has to provided which allows the court to confidently conclude that the child is “likely to suffer significant harm” on the facts of a case. It is not sufficient for the court to be provided with general concerns about the parents or even the risks to which the child would be exposed if she were to return home because the court needs to be satisfied, bearing in mind the test in s31(10) of the Children Act 1989, if any harm is likely to be significant.[17]I do not consider that, in the absence of any evidence focusing on this issue, I can reach a decision as to whether to give leave under s100 of the Children Act 1989 at this hearing. However, I have not dismissed this application but have adjourned it so as to enable the social workers to focus on the statutory test and to provide their assessments to the court before the next hearing. Issue 3: Can the Local Authority make a case that this deprivation of liberty was for the purpose of educational supervision?[18]The third issue is whether the Local Authority have properly provided evidence which brings the case within any of the sub-paragraphs of article 5(1) of the Convention. The relevant parts of article 5 provide: ““Right to liberty and security (1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; … (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; …[19]There are a series of preliminary points which I should set out before focusing on the article 5 issues. First, the fact that the local authority have parental responsibility as a result of the care order does not, of itself, entitle the Local Authority to authorise the placement provider to impose restrictions on LB’s movements if those restrictions amount to a deprivation of her liberty. That applies even though LB is not yet 16 years old, as was recently confirmed by the Court of Appeal in J v Bath and North East Somerset Council & Ors [2025] EWCA Civ 478. Secondly, the Local Authority is entitled to apply to the High Court to authorise the deprivation of liberty but it must demonstrate that the proposed deprivation of liberty is justified by coming within one of the permitted sub-paragraphs of article 5(1) of the Convention. Thirdly, that in addition to satisfying the court that the case comes within one of the permitted sub-paragraphs of article 5(1), the Local Authority must show that the removal of the child’s liberty satisfies the test of proportionality, which in practice means that the restrictions are proportionate to the risks that the child would face if the restrictions were not imposed.[20]In this case the Local Authority accepted that the primary purpose, at least to date, relied upon to justify the deprivation was to keep LB safe in the sense that the restrictions were intended to prevent LB from absconding and returning to live with her mother. Frankly, counsel for the Local Authority accepted in submissions that this was a “welfare” reason and that, to date, the Local Authority had not focused on whether that was a permitted reason under article 5(1) of the Convention. Ms Slater for the Local Authority frankly accepted that, once the point had been raised, depriving a child of their liberty for pure welfare reasons or to prevent a child absconding could not come within article 5(1).[21]However, Ms Slater submitted that the Local Authority should be given time to prepare a case that it was permissible to deprive LB of her liberty under article 5(1)(d), namely “for the purpose of educational supervision” but she accepted that she was not in a position to be able to make that case today. That seemed to me to be an entirely responsible and realistic position for the Local Authority to take. That raised the question as to what was meant by the term “educational supervision” in article 5(1) of the Convention.[22]In Boumar v Belgium (ECTHR: 9106/80) the European Court of Human Rights was dealing with a case of a juvenile who had been diverted from the criminal justice system but was nonetheless detained in prison for extended periods whilst arrangements were made for suitable accommodation to be provided to him. The court explained at paragraph 43 that article 5(1) “sets out an exhaustive list which must be interpreted strictly”. It said at paragraph 52, in response to a submission that the Belgium state that relied on article 5(1)(d), “The Belgian State chose the system of educational supervision with a view to carrying out its policy on juvenile delinquency. Consequently it was under an obligation to put in place appropriate institutional facilities which met the demands of security and the educational objectives of the 1965 Act, in order to be able to satisfy the requirements of Article 5 § 1 (d) (art. 5-1-d) of the Convention”. It then noted that the evidence did not support that case and thus concluded there was a breach of article 5. In Blokhin v Russia (Case 47152/06) the Court developed this area of jurisprudence when it held that the detention for educational supervision pursuant to Article 5(1)(d) must take place in an appropriate facility with the resources to meet the necessary educational objectives.[23]The ECtHR returned to the issue in Koniarska v United Kingdom (2000) 30 EHRR CD 139. This was an admissibility decision in relation to a 17 year old who had been the subject of a secure accommodation order made by the court under 25 of the Children Act 1989, and who had substantial mental health challenges. It seems to me that the fact that the local authority had followed the s25 statutory framework was a key feature of the case.

(d) and said:

“Article 5(1)(d) authorises, amongst other things, the detention of a minor for the purpose of educational supervision. The applicant was under the age of 18, and therefore a minor, throughout the relevant period. The only question for the Court is thus whether the detention was “for the purpose” of educational supervision (see BOUAMAR V. BELGIUM (1989) 11 E.H.R.R. 1 , para. 50). The Court notes that the orders made by the Magistrates Courts on 23 November 1995 and 23 February 1996 were not isolated orders for detention. They were orders made in the context of a long history of efforts by the applicant's parents and the various authorities to ensure the best possible upbringing for the applicant. In particular, the applicant was subject to a care order, and the application for a secure accommodation order represented the local authority's only way of keeping the applicant in the secure accommodation which they considered she needed. The Court next notes that the applicant had passed the school leaving age, and apart from the secure accommodation orders could not have been required to attend continuing education. However, the relevant parts of Article 5(1)(d) of the Convention are limited to the detention of “minors”, and not to the detention of persons below the official school leaving age. The mere fact that the applicant, aged 17, could no longer have been required to attend ordinary school does not taint her detention under a specific order, provided that the detention was indeed “for the purpose of educational supervision”
. The applicant claims that the detention was not “for” the purpose of educational supervision, but that any education which was offered was purely incidental to the real reason for the detention, which was (in respect of the first order) “a need for protection and containment pending the actioning of her care plan”. The Court considers that, in the context of the detention of minors, the words “educational supervision” must not be equated rigidly with notions of classroom teaching. In particular, in the present context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned. The Court has no doubt that the orders made by the Magistrates Courts on 23 November 1995 and 23 February 1996, on the application of the local authority, were capable of constituting part of the “educational supervision” of the applicant. As to the reality of the educational provision in the present case, the Court notes that Glenthorne, to which the applicant was sent, is a specialist residential facility for seriously disturbed young people. As part of its multi-disciplinary approach, it provides an educational programme in which young people are taught in groups of three or four, or sometimes on a one-to-one or a one-to-two basis. Until January 1996 the applicant attended a full range of classes, and that even after an incident with another student she attended some classes and took part in life skills and social skills programmes. The fact that the number of classes attended by the applicant was limited because she chose not to go cannot affect the underlying position, which was that extensive educational provision was made, and the applicant benefited from it to a certain extent. The present case is therefore to be distinguished from the above-mentioned BOUAMAR case, in which the applicant was detained “in a remand prison in conditions of virtual isolation and without the assistance of staff with educational training” (above-mentioned BOUAMAR V. BELGIUM , para. 52)”[24]That case was referred to by Lady Black in Re T at paragraph 83. Lady Black also referred to the observations of Judge LJ who said in In re K (A Child) (Secure Accommodation[25]I fully accept that the term “educational supervision” in article 5(1) has to be widely interpreted and is far wider than formal classroom based education. However, whilst educational supervision encompasses a wide concept, in my judgment it cannot be wholly equated with a child’s welfare and restrictions and a deprivation of liberty cannot be justified under this part of the convention primarily to prevent a child absconding. A Local Authority is fully entitled to advance a case to say that a child has been accommodated in a specific placement where the purpose of the placement is to provide educational support to the child across a wide range of life skills and to show that sufficient resources have been allocated to the placement so as to ensure that the education is a central focus of the placement. As part of that case, it could show that appropriate trained staff have been allocated so as to ensure that this educational provision is delivered. It is also open to a Local Authority to provide evidence to show that(a) in the particular circumstances of the case, this educational support can only be delivered to the child if the child is subject to restrictions on his or her liberty,(b) that those restrictions amount to a deprivation of the child’s liberty and(c) that this is both necessary and proportionate. However, absent such evidence, I do not see how a court could properly conclude in a case like the present that the matter comes within article 5(1)(d) as interpreted by the ECtHR in the various cases set out above.[26]In this case there was some, albeit limited, evidence to show that LB was being assisted by staff at the placement to learn a series of life skills with a view to her having the tools to make better decisions for herself going forward. However, Ms Slater accepted that this evidence fell a long way short to evidence which could satisfy a court that the case came within article 5(1)(d). I thus declined to continue the existing DOLS order and instead adjourned the case so that the Local Authority had an opportunity to present evidence to support a case that it was justified in making arrangements which had the effect of depriving LB of her liberty.[27]It follows that, at present, there is no authorisation which allows care staff actively to deprive LB of her liberty. I am not convinced that, in practice, this will make a huge amount of difference because the facts show that, notwithstanding the existing order, LB has absconded on a number of occasions since the DOLS order was made. It may well be that, in the next 2 weeks or so, both the Local Authority and LB will understand whether the DOLS restrictions are really needed to enable placement staff to deliver a structured programme of support to LB. If she absconds on a regular basis, that will strengthen the Local Authority’s case that the DOLS is needed. Conversely, if LB and the placement staff show that they can work together without the need for a DOLS, that may lead the Local Authority to consider its position and/or may cause a future court carefully to examine the necessity of reinstituting the DOLS order.[28]It follows that I declined to make a new DOLS order at the hearing on 13 May 2025 because I did not consider that the Local Authority had provided the evidence needed to entitle me to make an order. Rather than dismiss the case, I adjourned the case to 28th May 2025 so that all parties can prepare for a resumed hearing, should this be needed.

Order

Right to Liberty) [2001] Fam 377 at paragraph 107: “This goes far beyond school. It is not just about the restriction on liberty involved in requiring a reluctant child to remain at school for the school day. It arises in the context of the responsibilities of parents which extend well beyond ensuring the child’s attendance at school. So it involves education in the broad sense, similar, I would respectfully suggest, to the general development of the child’s physical, intellectual, emotional, social and behavioural abilities, all of which have to be encouraged by responsible parents, as part of his upbringing and education, and for this purpose, an appropriate level of supervision of the child to enhance his development, where necessary, by restricting his liberty is permitted”

Cited in 1 later judgment