Unregulated placement versus welfare needs

In Lancashire County Council v G and N the court used their inherent jurisdiction to authorise an application to deprive a teenager of her liberty in an unregulated placement that was not suitable to meet her needs due to the lack of adequate, safe placements anywhere in the UK. The decision was made on the basis that, if a placement was not found, the teenager would be at serious risk of harm.

The facts

G, a 16- year-old, who was being fostered, had complex mental health difficulties (set out over several pages of the judgment) and was considered at a high risk of serious self-harm and suicide. G had been (just this year) subject to 21 inpatient hospital admissions and was detained in an adult mental health unit under section 2 of the Mental Health Act. The local authority made an application to the court on the basis that G no longer met the criteria for detention under the Mental Health Act and was in urgent need of a secure placement. There were no appropriate placements that could be found however, so the local authority made an application to deprive G of her liberty in an unregistered placement.

The decision

The court was forced to approve an emergency placement that did not ideally meet G’s needs on the basis that there was no alternative option to ensure G’s safety. The court was satisfied that the conditions under Article 5 European Court of Human Rights and on balance found it was in G’s best interests to grant relief to the local authority. In his judgement, Mr Justice Macdonald said that the stark choice faced by the court is to refuse to authorise the deprivation of liberty in an unregistered placement which will result in her discharge into the community where she will almost certainly cause herself possibly fatal harm or to authorise the deprivation of her liberty in a unregistered placement that all parties agree is suboptimal from the perspective of her welfare because that unregulated placement is, quite simply, the only option available.

He also noted: “In short, this is the only placement available and the priority must be to keep G safe. She has nowhere else to go. As I make clear however, I harbour grave reservations about this decision.”

Comment

This is one of many cases that have reached the courts concerning young patients with highly complex mental health needs in which limited placements and resources have forced the court to consider urgent protection of a child’s safety over and above the welfare principle. The court described the background as “depressingly familiar”. Counsel for the local authority described G as another child who falls through the gaps that exist between secure accommodation, regulated accommodation and detention under mental health legislation.

Mr Justice Macdonald expressed serious concern about whether the court was really using the welfare principle or whether the circumstances forced him to make a judgment out of urgency. He was acutely conscious of his powerlessness, of his inability to do more for G. He directed that his judgment be sent “forthwith” to the Children’s Commissioner, Secretary of State for Education, OFSTED and others.