Lord Meston (CB)

My Lords, I speak as someone who has had to make these orders, and in doing so I recognise that these amendments are of great importance, shining light on the deprivation of liberty jurisdiction which has persisted in England and Wales for perhaps too long. In an article in the Observer just a year ago, there was trenchant criticism from the former President of the Family Division, Sir James Munby. He wrote: “When a system is routinely locking up vulnerable children in highly inappropriate settings because they are too difficult to look after, something is clearly going very, very wrong”. He described this as a “moral failure – by the state and by society”. As has been explained, the existing statutory provision for secure accommodation orders made under Section 25 of the Children Act now covers only a few of those with complex needs and those requiring accommodation because they have to be protected from exploitation or present a risk to others. That is because “secure accommodation” is a term which describes only registered children’s homes specifically approved by the Secretary of State, of which, as we have heard, there are only a limited and increasingly insufficient number available. With the severe shortage of places and the rising need for accommodation for those whose welfare requires some restriction of liberty, that need has had to be met by applications to the High Court for authorisation under the court’s inherent jurisdiction. As places cannot be found in suitable registered homes which are Section 25 compliant, the High Court then has to consider whether an unregistered placement is in the child’s best interests. All too often, the local authority, the child’s guardian in the proceedings and the court have to struggle when considering what is available. The court is faced usually with a short-term crisis, planned for in the short term, and limited services available, and is battling to keep the child safe. In doing so, one is usually presented with only one unsatisfactory option. As the MacAlister report put it, “Courts do not take such decisions lightly. Deprivation of liberty orders are often made following a nationwide search for homes, and often after the child has experienced multiple home breakdowns … the harrowing circumstances set out in these High Court judgements are a window into the dysfunction of the care system”. In practice, if a DoLS is justified, the court has to look at the distance from home, the adequacy of education provision, if any, the adequacy of staffing and the nature and level of any workable restrictions required. I take one slight issue with something the noble Baroness, Lady Barran, said. In my experience, children do participate, at least in some hearings. They sometimes attend in person, but, as we all know, they are often placed far too far away—certainly from the court dealing with it—and sometimes they attend remotely. In my experience, one hears children who are depressed, agitated, traumatised and often very worried. In those circumstances, the court is looking not for what is best but for what is available and what is least worst, trying to keep that child safe. The shortage of provision and the resultant use of deprivation of liberty authorisations have been known about for a long time and have been the subject of strong criticism from the higher judiciary, which has seen what was meant to be only a last resort become the norm, described by the Supreme Court as an “imperfect stopgap”. The judiciary has felt dismayed that its concerns appeared to be unheeded by Governments and Parliament. It has also been concerned that the courts were having to do what the state really should have been doing without recourse to the court in most cases. The scale of the problem has been repeatedly highlighted by the Nuffield Family Justice Observatory, whose excellent work has been referred to during this debate, but also by others, including the BBC and responsible journalists elsewhere. I recognise that Clause 11 creates a new statutory regime and the concept of relevant accommodation, extending the places in which children can be confined. Much of what I have heard from Ministers on the Government Front Bench today has been very reassuring, and a recognition that the Government are getting to grips. Of course, it remains to be seen whether what can be achieved will be a sufficient response to the difficulties created by these orders, and to the independent review’s call for more flexible and innovative types of provision of care for children. I support the amendments to improve what the Bill intends to achieve, in particular Amendment 124, which would require it to be stated that a deprivation of liberty has to be a last resort. Amendments 120A and 127 expressly provide for education and for therapy. Amendment 123 provides for regular reviews—not by the court, which is what happens at the moment, but by the authorities responsible for that deprivation of liberty. There is much to be said also for Amendment 132 on the involvement of the independent reviewing officer. I will also support Amendment 506B, providing for the availability of legal aid. I questioned what in reality Amendment 122 would achieve, simply because we are where we are because of the severe shortage of registered children’s homes, of which there were 29 in 2002 and there are now only 13, which has, of course, forced reliance on unregistered placements that are often expensive. I think the answer to my question is that the expectation is that there will be improved registration of homes and an extension of the availability of homes to address what the noble Baroness, Lady Barran, called the underlying need to increase capacity. Finally, in respect of government Amendment 128, I ask what this will all mean for cross-border placements. There are awful stories of children from Devon and Cornwall having to be placed in Scotland.