Secure Accommodation and Deprivation of Liberty Orders for Children: a last resort or a national scandal?

What is the difference between a Secure Accommodation Order and a Deprivation of Liberty Order?

A secure accommodation order is made pursuant to section 25 of the Children Act 1989. It provides for a child who is being looked after by a local authority in England or Wales to be placed in accommodation if strict statutory criteria are satisfied. Those are that:

1. The child has a history of absconding and is likely to abscond from any other description of accommodation; and
2. If the child absconds, he/she is likely to suffer significant harm; or
3. If the child is kept in any other description of accommodation, he/she is likely to injure him/herself or other persons.

Accommodation can only be used as secure accommodation if it:

1. Has been authorised for use as such by the Secretary of State.
2. Is provided for the purpose of restricting the liberty of children to whom section 25 applies (The Children (Secure Accommodation) Regulations 1991, section 2.

The High Court has a separate and parallel power to invoke the inherent jurisdiction and authorise the deprivation of a child’s liberty in a non-statutory placement.

When a Deprivation of Liberty Order is made, the Court makes a permissive declaration, authorising specific, tailored restrictions as the least restrictive and most proportionate response to the risk of harm which arises. Commonly, this will include the supervision ratios for the child (during the day, in the community and at night), whether physical restraint is permitted, and the confiscation of possessions and/or clothing.

Ordinarily, the reasons for pursuing a Deprivation of Liberty Order (instead of a section 25 order) are:

1. 1. The placement sought does not meet the criteria set out in section 25 (for example, a hospital, a children’s home that has not been authorised by the Secretary of State, or a ‘bespoke’ placement); or
   2. A suitable placement is not available.

 

The crisis in provision

Some of our most vulnerable teenagers live in undignified, uncaring and unsafe conditions because we do not have adequate accommodation to promote their welfare. Children at risk of the gravest harm have been “placed” in caravans, short-term rentals and holiday parks, with staff hired to watch them to prevent them from coming to the gravest harm.

In 2017, Sir James Munby (then President of the Family Division) handed down Judgment in Re X (A Child) (No 3) [2017] EWHC 2036 (Fam). At paragraph 37, Sir James Munby (P) said:

‘What this case demonstrates, as if further demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with. We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a Judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms’ [37].

In Re B (A Child) [2020] Fam 221, Baker LJ recorded that the absence of sufficient resources meant that local authorities were ‘frequently prevented from complying with their statutory obligations to meet the welfare needs of a cohort of vulnerable young people who are at the greatest risk of harm’. It was ‘a problem which needs urgent attention by those responsible for the provision of resources in this area’.

In 2021, the case of Re T (A Child) (Appellant) [2021] UKSC 35 followed. Lady Black acknowledged the problem: ‘Some of these children need to be placed in secure children’s home but no place can be found for them in one of the small number of approved secure children’s homes that there are in England and Wales. Some would be likely to meet the criteria for placement in a secure children’s home, but would be better served by highly specialised therapeutic care of a different kind, albeit still with their liberty strictly limited’ [2].

Lady Black went on to observe that, over recent years, the High Court has found itself faced with a significant number of applications by local authorities seeking orders under the inherent jurisdiction. The significant shortfall in secure accommodation was causing increasing numbers of applications to place children in secure accommodation outside the statutory scheme laid down by Parliament (section 25).

And still, the problem persisted. On 15 January 2023, Sir Andrew McFarlane (P) delivered another damning message:

‘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 [‘a child’] 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’ [Re X (Secure Accommodation: Lack of Provision) [2023] EWHC 129 (Fam)].

Here’s the spoiler: there remains a significant shortfall in the number of approved secure children’s homes. So, what happens next?

The impact of the Court’s decision in AGNI

Until June 2026, the acid-test for the deprivation of liberty was set out P v Cheshire West and Chester Council [2014] UKSC 19: ‘that the person concerned “was under continuous supervision and control and was not free to leave”’. Lack of mental capacity was equated with a lack of “valid consent” for the purposes of establishing whether there had been a deprivation of liberty. As a result, those who lacked capacity and were subject to living arrangements that deprived them of their liberty were protected by Article 5 and their restrictions had to be subject to safeguards.

In A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 (“AGNI”), the Supreme Court unanimously overturned Cheshire West, deciding that it was wrong in six main respects:

1. The “acid test” is not sufficient to show there is a deprivation of liberty. The Strasbourg Court requires a multifactorial assessment considering factors such as the type, duration, effect and manner of implementation of the measures in question [184].
2. The majority in Cheshire West were wrong to conclude that “a person’s compliance or lack of objection” is never legally relevant to the question of objective confinement. There is overlap between the objective and subjective elements of a deprivation of liberty. If an individual objects to the arrangements, this is likely to result in conflicts. ‘There may be arguments, attempts to leave a particular place, expressions of a wish to leave, or conduct showing a wish to leave’ and the necessary element of coercion is present. Conversely, the absence of objection is likely to result in an absence of conflict, which is equally capable of being relevant. ‘If the arrangements for an individual’s care and treatment accord with their known wishes and feelings, and they are happy with them, it may be difficult to conclude that they are subject to a deprivation of liberty. There is unlikely to be any element of coercion present in that situation’ [187]. The Strasbourg caselaw reflects the need for coercion or some externally imposed restrictions on an individual [195].
3. The type of setting where an individual receives treatment (ranging from living in a high security psychiatric hospital to living as independently as possible in their own home) is relevant to assessing whether there has been a deprivation of liberty [193].
4. The “acid test” fails to take account of the individual’s innate limitations (for example, by reason of their own physical or medical condition) [195].
5. The majority in Cheshire West were wrong to discount the potential relevance of the purpose for which measures of confinement were imposed [200].
6. Lack of legal capacity has been wrongly equated with lack of valid consent. If a person lacks legal capacity to make decisions about their care and residence arrangements but nevertheless has a basic level of awareness about those arrangements which is sufficient to enable them to know and communicate whether they are happy or unhappy with them, then they can be treated as being able to give or withhold valid consent to confinement by an expression of their wishes and feelings [201].

AGNI was a case about adults. But it was subsequently applied to children in the case of Re Mustafa (a child) [2026] EWHC 2159 (Fam), in which Mr Recorder Adrian Jack gave guidance on the application of the new case law. The logical conclusion was that ‘a child who is not Gillick competent may nonetheless have sufficient understanding for their views to be relevant as to whether they consent to aspects of deprivation of their liberty’ [39].

In Re Mustafa, this led to the decision that the child was not being deprived of his liberty and court authorisation was not required for the restrictions on his freedom.

It remains unclear how the impact of adverse early childhood experiences, domestic abuse, psychological trauma and unstable home conditions will be considered as part of any assessment of a young person’s wishes and feelings, although it is anticipated that the multi-factorial assessments will become highly fact-specific.

The obvious consequence of AGNI is that, although the provision of facilities for secure accommodation for children may not have increased, the number of applications for Deprivation of Liberty Orders may reduce.

The Children’s Wellbeing and Schools Act 2026, section 13

Section 13 of the Children’s Wellbeing and Schools Act 2026 amends section 25 of the Children Act 1989 as follows:

1. There is an important change of terminology. “Depriving” children of their liberty is substituted for “restricting” children, which further assimilates the parallel powers under section 25 and the Senior Courts Act 1981.
2. Section 13(3) provides for children to be placed in “relevant accommodation”, which is defined as accommodation that is provided for the purposes of “the care and treatment of children” and 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”. This could permit local authorities to authorise the deprivation of liberty of children in alternative placement types (for example, in hospital and “bespoke” placements).

We don’t yet know how “relevant accommodation” will be defined or what it will look like for the young people who will be living in it. But section 13 purports to create an additional category of accommodation to be used for depriving children of their liberty pursuant to section 25.

This change may represent more than an effort to create more secure placements by re-defining beds and facilities that already exist (and therefore bringing them within the scope of section 25). One of the fundamental principles of the inherent jurisdiction is that it cannot be invoked to resolve a problem for which there is a statutory solution (in this case, section 25). The chronic shortage of placements and the desperately risky circumstances of the children at the centre of these proceedings may have compelled practitioners and the Court to rely upon Deprivation of Liberty Orders as a “last resort”, but there is a clear distinction between a “last resort” in shameful circumstances and a problem for which no statutory solution exists. By widening the scope of section 25 of the Children Act, section 13 of the Children’s Wellbeing and Schools Act 2026 may re-calibrate the two parallel powers. Again, this may result in a reduction in the number of Deprivation of Liberty Order applications without the increase or improvement of provision.

This article is for general information only and does not constitute legal advice. The law is correct as at the date of publication and covers England; the position in Wales differs. Provisions described as not yet in force may have been commenced since publication.