BA (A Child) (DOLS In Hospital), Re [2026] EWHC 653 (Fam)

[2026] EWHC 653 (Fam)Case No FD25C41352
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/03/2026
Before
THE HONOURABLE MR JUSTICE MCKENDRICK
Between
A LONDON BOROUGHApplicantCDRespondentsEFRespondentBA (A child by her Guardian)Respondent
Re BA (A Child) (DOLS In Hospital)Ms Sophia Stapleton (instructed by local authority solicitor) for applicantMr Hakeem Olajuwon (of Bloomfield Solicitors) for first and second respondentsMs Deborah Marsden (of Creighton and Partners Solicitors) for third respondentHearing Hearing dates: 3 and 16 March 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 20 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE MCKENDRICKThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

McKendrick J :

[1]An order authorising the deprivation of a child’s liberty is amongst the most serious of orders which judges of the High Court are asked to make. Most of these applications are heard in private and therefore receive little public scrutiny. When sitting in the specialist National Deprivation of Liberty List judges frequently will hear upwards of five or six cases each day. They are routinely listed for an hour and are mostly held by MS Teams remotely. It is therefore necessary for judges to efficiently hear each case and deliver a short ex tempore ruling setting out the reasons for the authorisation of the deprivation of liberty. Reasons are essential to explain the legal and factual basis for the detention. These reasons should set out how the detention complies with the requirements of Article 5 of the European Convention on Human Rights (hereafter “ECHR”) thereby satisfying the court’s obligations pursuant to section 6, Human Rights Act 1998 (hereafter “the 1998 Act”).[2]I heard this case in a busy list on 3 March 2026. I made an order authorising the applicant to be permitted to deprive the child the subject of the application of her liberty until 16 March 2026. I continued the order on 16 March 2026 for a limited further period to permit a transition into an appropriate placement, with the support of her parents. The circumstances of the case are stark for the child, a highly vulnerable thirteen year old girl, anonymised in this judgment as BA. She was discharged from section 3 of the Mental Health Act 1983 (hereafter the “1983 Act”) on 11 December 2025. She was then placed in a solo placement with an ancillary deprivation of liberty order made. This placement failed very quickly, she self-harmed and was admitted to an acute hospital. Since early January 2026 BA has been deprived of her liberty in an accident and emergency ward of an acute hospital in London. That is to say she has been detained in a windowless room in a busy hospital for nearly two and a half months. She is accommodated and cared for there, as there is nowhere else to do so. I described this situation at the hearing on 3 March 2026 as intolerable. Intolerable for her, first and foremost. Intolerable for her distraught parents. Intolerable for the many other children who are in state detention in inappropriate settings because of the well-known lack of appropriate facilities to treat the mental health symptoms of highly vulnerable children. It is also unacceptable that a much needed NHS bed is unavailable for want of other more appropriate provision. Open justice requirements led me to conclude a short judgment should be published.

Background

[3]BA is now aged 13 years old. BA is the much loved daughter of her parents. She has a younger sister. They had lived together in London until mid-2025 when BA’s mental health became so dysregulated, she was no longer able to be safely cared for by her parents. BA has an Educational, Health and Care Plan (EHCP). BA has a diagnosis of conduct disorder and ADHD. BA is awaiting assessments for ASD, and has a working diagnosis of autism. BA is articulate and is confident when reading. She is noted to be reading at an equivalent age of 16+. BA likes animals and is caring and nurturing. In March 2025, BA was permanently excluded from her school. BA’s EHCP was issued on 20 May 2025.[4]In May 2025, BA was sectioned under section 2 of the 1983 Act. On 10 June 2025, the section 2 was converted to a section 3 detention. BA was discharged from the mental health hospital on 11 December 2025.[5]Prior to BA being sectioned, when in her parents’ care, there were escalating concerns regarding her safety and emotional ability. There were frequent missing episodes. BA engaged in self-harm, expressed suicidal ideation, and displayed violence and aggression within the family home, resulting in repeated police callouts and multiple attendances from various first responders. She was not engaging with community health services, including CAMHS and the Home Treatment team.[6]Public law proceedings pursuant to the Children Act 1989 were commenced, effectively on the basis BA was beyond parental control. An interim care order was made on 10 December 2025. BA’s parents accepted being unable to care for BA at home and that BA was non-compliant with medication on occasions. It was accepted BA has shown self-harming behaviours which have included head banging, ligaturing, stock piling medication and friction burning. BA has demonstrated physical violence towards others including her parents, the police and hospital staff. BA’s condition has resulted in restraint to prevent harm and medical attention including seclusion and the use of sedation.[7]On 11 December 2025, BA moved to a “solo” placement. Proceedings came before a deputy judge sitting in the national DOLS List on 10 December 2025. A deprivation of liberty order was sought by the applicant to safely effect the discharge from section under the 1983 Act to the solo placement. No secure accommodation was available. A witness statement was filed seeking the DOLS order. I have read it carefully. It says little concrete about the “solo” placement. No mention of broad education or BA’s EHCP is made. The witness statement said: [BA] will be transitioning from an in-patient psychiatric hospital to a solo placement designed to meet her high level of emotional, behavioural and neurodevelopmental needs. The proposed plan will be highly structured, trauma-informed, and staffed by adults have an understanding around ASD and are trauma informed. Continuous supervision and control will be required to ensure [BA]’s safety, to support emotional regulation, and to reduce the significant risk of self-harm and impulsive behaviours.[8]I admit to not being clear what this language means in term of actual concrete provision for BA. I think it might be the case the “solo” placement was a flat with staff trained in de-escalation and restraint. It was regulated by OFSTED. BA was spoken to about the placement and it was considered she was not competent to make a decision about moving there. There is no record in the evidence of her being invited to visit the placement to form her own view on it, prior to the decision being made to commission it. This, depressingly, appears to happen all too frequently.[9]The applicant sought authorisation for the deprivation of liberty for a period of twelve months. The initial DOL order was made on 10 December 2025. There is a detailed discharge report authored by her Responsible Clinician. It records there was no evidence of “an acute treatable mental illness that requires ongoing treatment in a hospital setting.” The report noted BA was at low risk of suicide. It noted she was at high risk of non-suicidal self-harm. She was at high risk of violence. There was a formal section 117, 1983 Act discharge recommendation plan and liaison with the local CAHMS team.[10]The solo placement quickly broke down as BA demonstrated increasingly violent and self-harming behaviours in early January 2026. She was admitted to hospital as an out-patient and discharged. There was further violence. On 8 January 2026, BA’s placement gave notice to terminate her placement. She has remained at the hospital in London since 8 January 2026. She is placed in a single room with an ensuite bathroom. The room has no windows. The room is within a noisy, busy paediatric accident and emergency ward. She is escorted into the garden on occasion. She appears to have received no education, either broadly interpreted or narrowly. When asked at the hearing on 3 March 2026 when her EHCP plan was last reviewed nobody could tell the court.[11]On 13 January 2026, the matter came before a Deputy High Court Judge. The court made a deprivation of liberty order. The restrictions made were:a. BA may be under continuous supervision and control with staff available at all times on a ratio of 4:1, with 15-minute welfare checks when she is settled in her room;b. BA may not leave the hospital without supervision by staff. If BA leaves the hospital unaccompanied, the supervising staff will be required to follow and contact the police;c. Supervising staff will determine when BA can access community activities, personal items, quiet spaces and outdoor areas, based on dynamic risk assessments;d. When travelling by car doors and windows of the care may be locked and BA shall be supervised by staff members on a ratio of 4:1:e. Any items in BA’s hospital room which may be used or adapted to be used to cause herself or others harm may be removed;f. Use of physical intervention as a last resort and only where verbal strategies and de-escalation techniques have failed, for the shortest time possible and with minimal force. Any use of physical restraint are only permitted to be carried out by supervising staff who are restraint trainedg. Random room checks may be used;h. Secure transport may be used in order to transport BA to the identified Residential or Secure placement.[12]The court directed for the matter to be relisted before the national DOL List on the first available date after 2 March 2026.[13]BA continues to display very challenging behaviour. This includes self-harm, assaults of care, security and health staff, verbal and racist abuse of others and attempts to abscond from hospital. BA has also verbally expressed thoughts to harm herself and others. BA is assessed as being a chronic risk to herself by CAMHS and this is reflected in frequent incidents of self-harming behaviours such as headbanging, ligatures, attempts to strangle herself and causing herself friction burns, as well as attempts to abscond from the hospital. BA is also assessed by CAMHS as being a risk to others.[14]The applicant recognised the hospital placement was very far from ideal but they submitted it was the only identified place that can keep BA safe currently.

The Hearings

[15]This matter came before me sitting in the national DOLS List on 3 March 2026 with a time estimate of one hour. The hearing was held in private. It was heard remotely by MS Teams. The hearing had been listed by the Deputy High Court Judge who heard the matter on 13 January 2026. On that occasion the court was satisfied the placement in a room in accident and emergency was suitable “as a temporary arrangement”. It was noted BA was supervised with a staff ratio of 4:1. The authorisation for the deprivation of liberty was supported by BA’s parents and her Guardian. The matter was listed for a further hearing on the first available date after 2 March 2026. No directions were made for further evidence. In any event, the applicant filed an updating witness statement. It noted BA had remained in the hospital. The statement noted BA remained in a room without a window. The evidence stated:
“This is a very busy Children’s A&E department which is an extremely challenging environment for a young person with [BA]’s needs. The Local Authority have made requests that [BA] be moved to a quieter space in the hospital however the hospital team have shared that this is not possible.”
[16]The applicant’s case summary noted there was one potential placement which could offer BA a place. This was being investigated. I was invited to continue the order authorising the deprivation of BA’s liberty for a period of three months. When questioned about BA’s education it appeared no arrangements were in place and I was not provided information in respect of how BA’s EHCP’s provision was being delivered to her, despite the hospital setting nor was I told when her EHCP was last the subject of a statutory annual review.[17]The first and second respondents opposed BA remaining in the hospital and the related authorisation of the deprivation of her liberty. They submitted she should return home to their care. BA’s Guardian noted the applicant was doing what it could in very difficult circumstances to keep BA safe. It was considered there could be no criticism of the applicant’s actions to find another placement. Against this background, the Guardian supported the applicant’s position.[18]I made clear the situation was intolerable. I made directions for the applicant to file and serve a detailed witness statement setting out interim education and the transition from the hospital setting to a placement. I made a direction for the parents to set out their plan for BA to return home to their care to consider the safety of that potential option. I listed another hearing to take place in person with a time estimate of two hours. At that hearing the applicant filed evidence of a transition plan to move BA to a residential children’s home around thirty minutes from her parents’ home. Arrangements were made for BA and her parents to visit the home before the placement begins. The staff at the home have experience of meeting the needs of dysregulated children. A CAMHS to CAMHS handover has taken place. Arrangements have been put in place for a tutor to provide education. Activities based around caring for animals in the local area have been identified. Play therapy has been identified and will be provided. A recommendation has been made for cognitive behavioural therapy. CAMHS are to update their assessment and are to explore providing cognitive behavioural therapy once BA is settled and ready.[19]The updating witness provided the court with a proper chronology in respect of BA’s recent education. Her EHCP will be transferred to the local area. Tuition and therapies have been arranged. BA has engaged in the planning meetings for her education.[20]BA’s parents have supported the transition to the new children’s home. They hope she will manage this step down provision and will be able to return to live with them. In the circumstances they supported the court authorising the deprivation of liberty order. The Guardian was able to meet with BA. BA told them that she wanted to go home and that she missed her family and her pets. She mentioned the lack of natural light and told her Guardian that it was not guaranteed that she would be taken to the garden for fresh air every day. Her solicitor also visited her some days later. She told her she wanted to be a teenager, doing teenager things, meeting up with her friends. She did not want a DOLS restriction, but if there had to be one, she wanted it for a short duration of a month. She was accepting of the new children’s home as it was close to her parents’ home and they would be able to visit her. A detailed transition plan to effect the move safely from hospital to the children’s home was filed.[21]I authorised the deprivation of liberty at the hospital setting strictly limited to a short period of time to permit the transition to the children’s home. My order authorised BA’s conveyance between the hospital and the new children’s home during the transition period. At the end of the transition period the order provides only for authorisation of the deprivation of BA’s liberty at the children’s home. As all parties agreed to the change of placement it was not necessary to list the matter for a hearing before the judge in the Family Court who is hearing the public law proceedings. I listed a 1 hour remote DOLS review hearing before that judge at the end of April 2026 to permit a review of the authorisation of the deprivation of liberty. BA will know this is taking place and I hope she will be encouraged by this with the optimism of consideration of reducing the very significant curtailment of her liberty.

Discussion

[22]The highly concerning facts which underpin this application led me to conclude a short written judgment was needed. It is intolerable that a highly vulnerable child has been detained in a room without windows, in a busy and noisy accident and emergency ward, for nearly two and half months. The fact the application was heard in private should be not barrier to putting such matters in the public domain. The common law open justice principles are of fundamental importance.[23]Despite her dysregulation and challenging behaviour, BA is not detained because she is of unsound mind. She was released from section under the 1983 Act and has been seen by mental health professionals since then and it has not been suggested she requires detention under the 1983 Act. She has not entered the criminal justice system. She is not detained after conviction. She is not detained pre-conviction to be brought before the competent authorities or to prevent her committing crimes or fleeing after having committed one.[24]Consistently with Article 5, ECHR the deprivation of her liberty may be authorised for the purposes of educational supervision, see Article 5 (1) (d). I have been surprised sitting in the National DOLS List by the high number of applicant authorities who are unable to provide basic information in respect of the educational supervision being provided to children the subject of an order for the authorisation of the deprivation of their liberty. It appears local authority social work and special educational needs teams work quite separately. It has been necessary to make specific directions against applicant local authorities to ensure the special educational needs team provide information to the court. Basic information about EHCPs, statutory annual reviews and what has taken place for a pupil post exclusion are often absent from the written evidence. Section 19 (1) of the Education Act 1996 places a duty on local authorities to make arrangements for the provision of suitable education for children of compulsory school age who cannot attend school because of illness, exclusion from school or otherwise.[25]Educational supervision has a wide definition. David Lock KC sitting as a Deputy High Court Judge set this out in his judgment of A Local Authority v LB and Others [2025] EWHC 1264 (Fam) at paragraphs 20 to 25. He said at paragraphs 24 and 25: 24. That case [Koniarska v United Kingdom 30 EHRR CD 139] 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[26]Baker LJ (with the agreement of Newey and Miles LJJ) emphasised this recently in T (Inherent Jurisdiction: Deprivation of Liberty) [2026] EWCA Civ 307 at paragraph 18.[27]There is some doubt as to whether or not Article 5 (1) (d) contains an exhaustive list of reasons for the detention of a minor. Plainly the list of cases for the deprivation of liberty of all persons at Article 5 (1) a to (f) apply generally and to minors. In Mayeka and Mitunga v Belgium (2008) 46 EHRR 449 the European Court noted at paragraph 86: In proclaiming the right to liberty, paragraph 1 of Article 5 contemplates the physical liberty of the person and its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion (see, mutatis mutandis, Amuur, cited above, § 42). The list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision[28]The court stated at paragraph 100 to state: The Court does not agree with the second applicant’s submission that paragraph (d) of Article 5 § 1 of the Convention is the only provision which permits the detention of a minor. It in fact contains a specific, but not exhaustive, example of circumstances in which minors might be detained, namely for the purpose of their educational supervision or for the purpose of bringing them before the competent legal authority to decide.[29]The court went on to note that the second applicant’s (a minor) detention came within Article 5 (1) (f) but went on to find that there was a violation of their Article 5 rights because they were detained in a closed centre for illegal migrants in the same conditions as adults and the conditions were not adapted to the position of extreme vulnerability as an unaccompanied foreign minor. I note that MacDonald J, with his considerable experience of these cases, applied Mayeka and Mitunga v Belgium in Hertfordshire County Council v NK and AK [2020] EWHC 139 (Fam) at paragraph 24, thus: Whilst Art 5(1)(d) of the ECHR provides a specific example of the detention of children, namely for the purposes of educational supervision, that example is not meant to denote that educational supervision is the only purpose for which a child may be detained (see Mubilanzila Mayeka and Kaniki Mitunga v Belgium (2008) 46 EHRR 449).[30]He goes on to note the ECHR rights should be read in the context of Article 37 of the UN Convention on the Rights of the Child. A similar analysis is provided in his judgment in Lancashire County Council v G and N [2020] EWHC 2828 (Fam) at paragraphs 37 to 39.[31]I have not heard argument on the extent to which the non-exhaustive list at Article 5 (1) (d) extends beyond the exhaustive list at Article 5 (1). I need not do so. For the purposes of this judgment, I am clear that the DOLs order I make in respect of BA is for the purposes of securing her educational supervision, in the broad sense. No party has suggested there is any other Article 5 ECHR compliant reason.[32]Even adopting the broad definition of educational supervision, it is not clear from the written evidence in these proceedings, what educational provision has been provided to BA since 11 December 2025. It may be said that there are challenges for the applicant to demonstrate it deprived BA of her liberty for the purposes of educational supervision.[33]Anya v University of Oxford [2001] EWCA Civ 405; [2001] ELR 711 at paragraph 12 makes clear the need for adequate and intelligible reasons for judicial decisions. This flows both from the common law and Article 6 ECHR. Particular care is needed by a court or tribunal to provide reasons when depriving a person of their liberty. Scrutiny is particularly required when that person is part of a vulnerable cohort (as BA most certainly is) see by analogy Lord Wilson’s dictum in Lee-Hirons v Secretary of State for Justice [2016] UKSC 46 at paragraph 23: We can be proud of the fact that, even in the dark ages, our law recognised the need for strict control of a deprivation of liberty: “no free man”, so King John was obliged to concede in clause 39 of Magna Carta (9 Hen 3), “is to be arrested, or imprisoned … nor will we go against him or send any against him, except by the lawful judgment of his peers or by the law of the land”. ….. The person whom the Minister is depriving of liberty is, as a restricted patient, a member of “a particularly vulnerable group and therefore any interference with their rights must be subject to strict scrutiny” (Zagidulina v Russia, European Court of Human Rights (“ECtHR”), 2 May 2013, Application No 11737/06, para 52). The patient may well be unable to respond to his recall in a manner which, objectively, would best serve his interests.[34]Overall, therefore I am satisfied it is appropriate to grant leave to the applicant to invoke the High Court’s Inherent jurisdiction pursuant to section 100 (3) of the 1989 Act, notwithstanding the existence of the statutory scheme set out in the 1989 Act. I am satisfied that the test in section 100 (4) is met as there is no secure accommodation in respect of which the applicant can apply to seek a section 25 1989 Act order. Secondly, I am satisfied without exercising the court’s powers under its Inherent Jurisdiction BA will likely come to harm by way of self-harming behaviours or the involvement in violent behaviours. She requires educational provision and the provision is a broad package of tuition and a broad range of therapies. This will be provided notwithstanding she is out of school and will be provided having regard to her EHCP. It is absolutely necessary for there to be an order authorising the deprivation of BA’s liberty to provide her with education and therapy to assist her to be kept safe from serious harm. I am satisfied there is no section 25 1989 Act accommodation available and as such the DOLs order in the identified children’s home is required. The applicant with its interim care order and the parents in the exercise of their parental responsibility both agree to BA living in the identified children’s home. There is no dispute that the constant supervision and control and locked doors and windows and the fact BA is not free to leave means that the “acid test” for confinement is met, see Storck v Germany (2006) 43 EHRR 6. The confinement is imputable to the State – the local authority applicant. Further I have concluded that BA’s best interests dictate that her confinement in the hospital cannot continue beyond 14 days from 16 March 2026 and the authorisation of the deprivation of liberty will only be in her best interests in the children’s home at the end of the transition. I am satisfied that the DOLs order is necessary and proportionate to the harm BA is at risk of.[35]I thank the Guardian and the applicant’s social work team for their diligent efforts to secure a means for BA to leave the inappropriate hospital setting. I end by wishing BA and her parents well and hope they will be able to navigate, together, a path which permits BA to return to her parents’ care.

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" 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.