Locking up children under the Children Act 1989 – some thoughts on Clause 10 of the Children’s Wellbeing and Schools Bill

As government announces further inquiries into the organised rape and sexual assault of children within and outside their local communities, this is an opportune moment for public and political reflection on what happens to children who have endured such abuse. Do we have the necessary legal safeguards, services and support in place to assist children in their often troubled and painful journeys of recovery from sexual, physical and psychological violence? How do we protect children from sexual predators who have the upper hand in every way possible to deceive, manipulate and exploit their vulnerabilities? Besides an apparent consensus that children should never be shunned when they tell adults in official roles that they have been raped or sexually assaulted, what more as a society do we owe them, and how close or far away are we from meeting these obligations?

The Children’s Wellbeing and Schools Bill, which starts Committee stage in the House of Commons this week, could make life harder for children who have suffered sexual abuse. Clause 10 significantly extends the statutory scheme for deprivation of liberty to allow looked after children – those who are the subject of a care order or an interim care order, as well as those accommodated under agreement through section 20 of the Children Act 1989 – to be confined in ‘relevant accommodation’. It achieves this through amending section 25 of the Children Act 1989, which presently permits children to be confined only in secure accommodation.

The courts have interpreted secure accommodation as being designed or provided for the purpose of restricting the liberty of children (see Baker LJ at paragraphs 46-60 in Re B (Secure Accommodation Order) [2019] EWCA Civ 2025). While section 25 applies to children living in hospitals (though not those detained under the Mental Health Act 1983) and care homes (Regulation 7, The Children (Secure Accommodation) Regulations 1991), a specialist secure children’s home is typically the place of confinement for looked after children deprived of their liberty under section 25.

Of the 83,630 children looked after by local authorities in England on 31 March 2024, abuse or neglect was the primary reason recorded for 66%. A two-year inquiry by the Office of Children’s Commissioner for England into child sexual exploitation in gangs and groups, concluding in 2013, found that more than a third (36%) of child safeguarding areas had used “secure accommodation as a refuge for sexually exploited children”. The Nuffield Family Justice Observatory (NFJO) analysed 208 deprivation of liberty applications made to the High Court across July and August 2022, finding sexual exploitation was the primary need recorded for 11% of children, mostly girls. The majority of children had a wide range of complex needs.

The High Court has been increasingly relied upon to make deprivation of liberty orders for profoundly vulnerable children, using its inherent jurisdiction power, due to the shortage of specialist secure accommodation. Judges have frequently used their public platform to advocate for children in desperate need who are the subject of these applications. But they can only go so far, as the President of the Family Division, Sir Andrew McFarlane, explained in his opening to Re X (Secure Accommodation: Lack of Provision) [2022] EWHC 129 (Fam):

These specialist units are limited in number and, at present, the number of secure beds is far out-stripped by the number of vulnerable young people who need to be placed in them. Courts are regularly told that, on any given day, the number of those needing a secure placement exceeds the number of available places by 60 or 70. It is not the role of the courts to provide additional accommodation; all the court can do is to call the problem out and to shout as loud as it can in the hope that those in Parliament, Government and the wider media will take the issue up. 

Government, and now Parliament, is taking up the issue – though possibly not in the way anticipated by the President and other judges who have implored policymakers to increase provision (there were 29 secure children’s homes in England and Wales in 2002, there are now 13).

Clause 10 defines ‘relevant accommodation’ as having “the purposes of the care and treatment of children [which] is capable of being used (in whole or in part), in connection with the provision of such care and treatment, for the purpose of depriving children of their liberty”. There has been no Green or White Paper preceding the Bill, which is particularly striking for these amendments to the Children Act 1989 since they go to the heart of children’s fundamental human rights.

In November 2024, the Education Secretary published her plans for children’s social care, which included a promise to:

… pilot a new, community-based approach … which provides treatment and care, bringing in professionals from children’s social care, health, justice and education. This will enable the system to deliver specialist care and accommodation for children who have complex needs, which has the potential to reduce both local authority reliance on costly unregistered placements and immediate and lifetime costs to the health and justice systems.

The following month, the Chief Executive of the Children’s Homes Association told parliament’s Education Committee that his organisation is doing “a lot of good work with civil servants at the moment in developing community secure provision”. This suggests that these changes will see private providers for the first time depriving children of their liberty under section 25: 83% of children’s homes are run for profit. All except one secure children’s home is run as part of a local authority’s children’s services; the other is managed by a charity.

The Explanatory Notes to the Bill state that, “Other, highly therapeutic accommodation designed for a child would have as its primary purpose the care and/or treatment of the child, as opposed to prevention of absconding or harm, and so cannot currently be used to deprive a child of their liberty via section 25 of the Children Act 1989”. But this evades the section 25 criteria for depriving children of their liberty.

The same criteria in section 25 will apply whether local authorities seek the court’s permission for confining a looked after child in secure accommodation or ‘relevant accommodation’ – that the child has a history of absconding, and is likely to abscond from any other description of accommodation and, in doing so, is likely to suffer significant harm or, if kept in any other type of accommodation, the child is likely to injure themselves or others. In other words, a looked after child who meets the section 25 criteria for deprivation of liberty could be confined in accommodation that hasn’t been designed and properly resourced for this. (As an aside, it is deeply disappointing that, in amending section 25, the government has not abandoned the archaic language of ‘absconding’ which unjustly implies improper conduct on the part of the child.)

What are parliamentarians being asked to approve? How is Clause 10 to be explained to children? If passed, would this mean that any accommodation in which a looked after child is receiving care and treatment (Clause 10 does not use the and/or caveat found in the Explanatory Notes) could become a place of confinement? The obvious safeguarding risk is that this could invite the return of punitive cultures which were ubiquitous within children’s homes of the past, where locked annexes and seclusion rooms were regularly used to intimidate, control and punish children.

The counterargument is that allowing parts of a building, or whole buildings in the case of a child living there alone, to move in and out of being a place of confinement will stop children having to be uprooted from settled homes in times of crisis and acute distress. The government’s human rights memorandum on the Bill states that the changes will “allow the child to remain in the same placement with no restrictions if this is appropriate for their needs”.

How would a child know and feel that they are no longer deprived of their liberty if they remain in the same setting with the same staff and the same prevailing ethos and culture? In mental health units, where formal (detained) and informal (voluntary) patients often live side-by-side, children have reported worse experiences when nominally free to leave – because of having fewer statutory rights and protections, and an ever-present threat of being sectioned. Furthermore, one of the concerning aspects of there being no public consultation on these changes, or publication of draft secondary legislation, is that it is not yet known if the same time limit will apply for a local authority confining a child in ‘relevant accommodation’ before it must seek court authority (currently 72 hours for secure accommodation – Regulation 10, The Children (Secure Accommodation) Regulations 1991). Or whether the Secretary of State’s approval will be required for the placement of a child aged 12 or under in ‘relevant accommodation’, as currently required for secure accommodation (Regulation 4, The Children (Secure Accommodation) Regulations 1991).

It is debatable whether the flexibility which policymakers have sought to draft into Clause 10 will increase children’s sense of security – especially if the experience of living in a home deemed ‘relevant accommodation’ includes witnessing other children being taken to and from separate locked areas, and fearing the same treatment.

Moreover, why would government and local authorities invest in expensive new secure children’s homes when corporate parents could, if Clause 10 is passed, seek a section 25 order to deprive children of their liberty in any accommodation which holds itself out as providing care and treatment to children?

The use of section 25 is meant to be a last resort and, to this effect, paragraph 7(c) to Schedule 2 of the 1989 Act requires local authorities to take reasonable steps to avoid the need for children to be held in secure accommodation (Clause 10 does not propose to extend this avoidance duty to ‘relevant accommodation’). One of the vital safeguards is that deprivation of liberty cannot be authorised by the court unless the child is likely to injure themselves or others if they were to live in any other description of accommodation. (The other unless provision is that the child is likely to suffer significant harm if they run away). What could lawyers acting for children wishing to resist a section 25 order feasibly propose as a substitute for accommodation whose purpose is to deprive children of their liberty and accommodation whose purpose is the care and treatment of children but is capable of depriving children of their liberty? Once these are considered together, what forms of children’s residential care would remain?

A review of locked up children by the former Children’s Commissioner for England, published in 2019, expressed alarm at the high number of children being deprived of their liberty through the High Court’s use of its inherent jurisdiction:

It is very concerning that children who meet all the criteria for being detained in a secure children’s home are in fact being sent to alternative placements, sometimes described as ‘quasi-secure’ homes. This is not a legal category of children’s home, and the court process itself does not provide any assurances about the suitability of the accommodation. These homes therefore cannot provide the high level of supervision children need, or are providing it without officially being approved to do so.

Additionally, in her written submissions as intervener in Re T (A Child) [2021] UKSC 35, the former Children’s Commissioner highlighted Strasbourg case law concerning the lawfulness of deprivation of liberty under Article 5(1)(d) and (e) of the European Convention on Human Rights, namely the requirement for appropriate facilities and environments.

Clause 10 does not amend the criteria for deprivation of liberty, instead it significantly extends the places where children can be deprived of their liberty. This will arguably legitimise the ‘quasi-secure’ homes which the former Children’s Commissioner was so worried about. Last month, the NFJO reported latest Ministry of Justice statistics showing there were 371 applications for deprivation of liberty orders under the High Court’s inherent jurisdiction between July and September 2024, compared with 60 applications for secure accommodation orders under section 25.

If, over time, Clause 10 produces a reversal of these statistics – so that the majority of looked after children deprived of their liberty are living in ‘relevant accommodation’ which looks and feels very similar to current places of confinement which presently fall outside the specialist secure provision demanded by section 25 – what, tangibly, will our country’s most vulnerable children have gained? And who will shout loudly for those children should their needs and rights continue to be neglected at a national level?