Nuffield Family Justice Observatory reports on legal outcomes of cases in the National Deprivation of Liberty Court

The National Deprivation of Liberty (DoL) Court was launched on 4 July 2022 as part of the Family Division of the High Court, specifically to deal with applications seeking authorisation to deprive children (under 18) of their liberty. The name of this court should not be confused with the Deprivation of Liberty Safeguards (DoLS) regime, or the Court of Protection which has the power to authorise the deprivation of liberty of those who lack capacity to make the relevant decisions. Instead, the National DoL Court has the power to invoke the inherent jurisdiction of the High Court to authorise arrangements which constitute the deprivation of a child’s liberty, irrespective of whether the child lacks capacity or competence to consent to the relevant arrangements.

Our clients regularly instruct us to make applications to the National DoL Court to authorise the restrictive arrangements in place for children under their care, for example when admitted to hospital as a place of safety or admitted to a residential therapeutic placement. The research report produced by Nuffield Family Justice Observatory (Nuffield FJO) on legal outcomes of cases at the National DoL Court provides a useful analysis of the orders routinely made, the nature of the restrictions authorised, and concerns or challenges for those party to such applications, in particular the child at the centre.

Some of the key points from Nuffield FJO’s report are:

• The National DoL Court has received applications for children aged 10-17, with the majority (58.5%) aged 15 or above.
• The primary reasons for applications to the National DoL Court are ‘risk to others’ (24%) (i.e. violence towards others and/or property damage), to manage a child’s needs/behaviour as a result of a severe learning disability, physical disability or autism (22%), to manage a child’s self-harm (16.8%), and to manage a mental health disorder (12.5%).
• In 92% of cases (based on the 113 cases reviewed), the application for a deprivation of liberty order was granted. In the other 8% of cases, the application was withdrawn either before or at the first hearing.
• On average, each case resulted in three deprivation of liberty orders, for an average duration of approximately one month each. Over a six-month period, only a minority of children (9.2%) experienced a relaxation or end to the restrictions on their liberty. 
• The most common restrictions authorised were constant supervision by at least one adult (99%), locked doors/windows (77.6%), physical restraint (69.4% of cases), restrictions on mobile phone use (62.2%) and internet use (55.1%). In a small number of cases, the Judge refused to authorise some of the restrictions such as restraint or limitations on community access.
• In 53.8% of cases, children were placed in at least one unregistered placement, and children were often placed a significant distance from home.
• In 15% of cases, a Children’s Guardian had not been appointed for the child at the first hearing (usually due to applications made at short notice), and the child’s opportunity to participate in the proceedings was usually limited, with only 9.5% of children attending at least one hearing, 4.8% speaking with the Judge directly before the hearing, and 5.8% writing to the Judge.
• The child’s parents and/or carers were legally represented for at least one hearing in only 11.5% of cases. There was no information about the views of parents and/or carers in 47.1% of cases, but when information about their views was available they were usually supportive of the application (92.7%).

Nuffield FJO’s full report can be found here.  

Applications to the National DoL Court are complex and sensitive. It is not uncommon for there to be multiple public bodies involved or for applications to be made at short notice. It is important to provide clear evidence about the proposed restrictions on the child’s deprivation of liberty and why those arrangements are considered to be proportionate, necessary and the least restrictive option and, ultimately, in the child’s best interests. Any arrangements authorised by the court are permissive, and restrictions should be kept under regular review to ensure they are relaxed or removed as soon as they are no longer necessary.

The child at the centre of the application should be given the opportunity to participate in the proceedings so far as that is possible, and the Children’s Guardian should be notified as soon as possible (preferably before the application is issued) to assist in securing their attendance at the first hearing. As the Nuffield FJO’s report notes, parents and/or carers are usually not legally represented (which is consistent with our experience); this is likely due to the lack of non-means tested legal aid. The child’s parents and/or carers should nevertheless be encouraged and assisted to participate in the proceedings (save in cases where that is not appropriate). Hearings before the National DoL Court take place remotely, which often helps parents and/or carers to attend.

If you have any questions arising from this article, or you require advice on an application to the National DoL Court, please do not hesitate to get in touch with our specialist team.