The High Court has recently addressed the complex and sensitive issue of depriving children nearing adulthood of liberty while in Local Authority (LA) care.
Background:
LB, born in August 2009, is now 15 and turns 16 in 2025. She was initially placed in LA care under Section 20 of the Children Act 1989 before a full care order was made in December 2024, as a consequence of parental domestic violence and drug use. Parental responsibility is presently shared between the parents and the LA.
LB wants to live with her mother and absconded back home in December 2024. In February 2025, HHJ Bailey ordered her recovery to a non-local placement and also permitted the LA to impose restrictions that deprived LB of her freedom under a Deprivation of Liberty Safeguards (DOLS) order, although this order expired on 13 May 2025.
The LA applied to renew the DOLS order, arguing that restrictions were necessary and proportionate to stop LB absconding to her mother. LB, however, strongly objects, stating she was safer and healthier and not self-harming at her mother's. Her guardian, however, supports temporary restrictions to allow the LA to make plans for her.
Decision:
The High Court family division declined to make a new DOLS order, adjourning the case instead, due to insufficient evidence provided by the LA. The Court first noted that the LA failed to explore secure accommodation under Section 25 of the Children Act 1989. The Judge emphasised that Section 25 provides a specific statutory framework for children in care who abscond and require restrictions on their liberty through secure accommodation. This framework includes clear criteria for placement, specifically a history of absconding and likely significant harm or injury to self or others, and built-in protections for the child. The Section 25 route, with its specific safeguards, should be used where applicable. The LA, however, failed to provide "clear evidence to explain why the s25 statutory framework, with its protections for the child, has not been used."
To exercise its inherent jurisdiction over a child (and thus make a DOLS order), the Court must grant leave under Section 100(4) of the Children Act 1989. This requires being satisfied that: (a) the desired outcome cannot be achieved by other orders, and (b) there is "reasonable cause to believe that if the Court's inherent jurisdiction is not exercised… he is likely to suffer significant harm." The Judge found that the LA had not provided sufficient evidence to satisfy limb (b) – that LB was likely to suffer significant harm if she were allowed to return to her mother. The Judge noted, “She is now nearly 16 years old and is rapidly moving towards being an adult, and thus her situation is wholly different from that of a much younger and more vulnerable child. The social workers have concluded that it would be better for LB to live in a placement where she can develop her life skills, and that this part of her education would be unlikely to be delivered at her mother's home. However, at present, as far as I can determine, the evidence does not explain whether the social workers have asked themselves the questions about how likely it is that LB will be exposed to harm at her mother's house, what the nature of that harm would be and whether it can be said that it is likely that would suffer substantial harm if she was not prevented from returning to live with her mother.”
Implications:
This judgement appears to signal that courts will apply a very high level of scrutiny to LA applications for DOLS orders, particularly when dealing with older children nearing adulthood. The judgement reinforces the notion that confining a child, even if it is considered to be in their "welfare" or to prevent them from leaving a placement, constitutes a deprivation of liberty, thereby engaging fundamental human rights protections. This is not something an LA can do easily or without strict justification.
This decision makes it clear that an LA cannot simply use the broader "inherent jurisdiction" of the High Court as a shortcut without a very strong reason as to why a Section 25 ruling is unsuitable or unavailable. Similarly, the likelihood of significant harm must be proven and not simply presumed, as general welfare concerns or risks are often deemed to be insufficient.
