Complacency bordering on cynicism
Senior family judge shocked to see Department for Education washing its hands of chronic problem
Here’s a comment by specialist writer on the family courts:
And here is the judgment delivered this week by Sir Andrew McFarlane.
The primary purpose of this judgment is for the court, once again, to draw public attention to the very substantial deficit that exists nationally in the provision of facilities for the secure accommodation of children. There are a number, and it is, sadly, an increasing number, of children and young people under the age of 18 years whose welfare and behaviour requires that they be looked after within a secure regime which restricts their liberty.
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.
The case is about a 15-year-old girl. The facts are extremely disturbing and I don’t need to summarise them here.
Although the Department for Education wrote to the court on 11 November, McFarlane refused to lift an order requiring the education secretary Gillian Keegan to appear before him, by counsel, at a hearing on 16 November.
His judgment continues:
During the hearing I expressed my disagreement with the central proposition that the secretary of state had nothing to contribute on this issue. The problem being faced by those trying to find a secure placement for [the girl] is not a one-off; it was, I explained, one being shared by the 70 or so others for whom places were being sought that day, and they and their forebears who have faced similar odds for the past decade or so, every time that these and similar statistics are quoted.
The lack of secure placements is long-standing and chronic. My view, expressed during the hearing, was that the stance taken by the Department for Education, to the effect that it was not its problem and was the responsibility of individual local authorities, displayed a level of complacency bordering on cynicism.
It was, I observed, shocking to see that the Department for Education seemed to be simply washing its hands of this chronic problem.
In December, a place was found for the girl at a secure unit in Scotland.
McFarlane concluded his judgment by recalling that “very senior judges have, for over six years, been consistently calling for parliament and government to acknowledge the need for action to address the gross lack of registered secure accommodation units”.
He ended his judgment with this plea:
Judges are currently being forced to perform functions which are properly the role of government by overseeing the search for suitable placements and by sanctioning ad hoc arrangements in individual cases because there is no placement available in the statutory scheme.
Whilst the Supreme Court, in Re T, has held that using the inherent jurisdiction in this manner is lawful due to the gross lack of secure accommodation provision, the High Court is nevertheless having to operate outside the law as it has been made by parliament and, despite the judges consistently asking it to do so, parliament has seemingly not even discussed this parlous and most worrying situation.
It must be accepted that simply adding to the number of judgments calling for action will not improve the position for young people such as [the girl in this case] but, in the present situation, that is all the judges can do.
It is a situation that will not change until urgent and effective action is taken by government and parliament to discharge the obligation that is on the state to protect the country’s most vulnerable children.
The submissions made on behalf of the secretary of state are therefore most welcome. They record, it would seem for the first time, an acceptance by the secretary of state for education that, nationally, there are significant problems with the availability of sufficient placements and that “this requires action by His Majesty’s government collectively to support local authorities to meet their statutory needs”.
It is to be hoped that this marked change from the approach trailed in the department’s letter of 11 November does indeed result in action and that the need for the court to hand down judgments of this nature will be a thing of the past.
One can but hope.
I know, admire and much respect Sir Andrew McFarlane as a bold and outspoken figure who hesitates not at all to expose and condemn individual and collective indifference on the part of officialdom and of holders of high office. My “arm’s length” experience of him in Birmingham and the West Midlands had led me to expect nothing less. ( I was a criminal defence solicitor and higher court advocate until my retirement but through Law Society activities I had rubbed shoulders with him frequently since he had been a practitioner on the Birmingham, etcetera, circuit) .
“Shameful” is the appropriate adjective for all this shrugging of shoulders.
It's outrageous that nothing has been done to address this problem over the years. The lack of secure accommodation for young people has been recurrently addressed in the Court of Protection hearings I've attended. Back in July 2021, I wrote a blog post describing the case of a 17-year-old who was being kept inappropriately in an Accident and Emergency bed because there was nowhere else for her to go. The judge (Mrs Justice Judd) said: "“I can tell you I have had myself a number of cases like this, with young people being in an A&E Department of a hospital, simply because there’s nowhere else for them. No doubt social workers are in a parlous position on this, but judges are being asked to authorise this position and it really is very troubling.” And back in 2017, Sir James Munby (then President) referred to this "disgraceful and utterly shaming lack of proper provision". Check out my blog post on "Secure Accommodation for Young People" https://openjusticecourtofprotection.org/2021/08/12/secure-accommodation-for-young-people-a-well-known-scandal/