How will the Children's Wellbeing Bill impact children deprived of their liberty?

This week, MPs continue to scrutinise the Children’s Wellbeing and Schools Bill.??

The Bill proposes to make several significant changes to the way our child welfare and family justice systems operate. This includes a substantial change to how these systems respond to older children and young people facing difficulty.??

The Children Act 1989 includes a statutory provision for circumstances where a child needs to be deprived of their liberty for welfare reasons. This is at section 25 of the Children Act 1989. Under this route, if an order is obtained, the child is placed in a secure children’s home. There is a regulatory scheme supporting this route.??

In recent years, we have seen a trend of children being deprived of their liberty outside of the statutory route and not in children’s homes.?Instead, they often live in unsuitable accommodation which is not registered with Ofsted and that is far from their homes and family.?

Clause 10 of the Children’s Wellbeing and Schools Bill proposes to change this provision. Under the changes, a children’s services department will still be able to apply for a secure accommodation order and make arrangements for a child to be deprived of their liberty in a secure children’s home. But they will now also be able to apply for an order to deprive a child of their liberty in “relevant accommodation". This is described as accommodation provided for the purposes of care and treatment of children but that is also deemed capable of being used to deprive a child of their liberty.??

It is welcome that the Government is addressing the issue of children being deprived of their liberty in inappropriate and unsuitable accommodation. This situation has been affecting children and their families for many years. But it is important to note the following in respect of the proposals:?

• First, how successful the changes will be in improving the situation for children being deprived of their liberty will depend almost entirely on the regulatory scheme accompanying them. More detail is needed regarding what this new type of accommodation will look like, including what is meant by the word “treatment” and what makes a setting “capable of being used” to deprive a child of their liberty. It is not yet fully clear whether these new settings will be children’s homes, nor what requirements they will need to meet in respect of a child’s education or in respect of registration with OFSTED.?
• Second, the proposals so far are silent on an incredibly important and often overlooked issue affecting these children - the strain these orders place on children maintaining relationships with those important to them. These children are often in solo placements, with restricted access to their phone and living far from family and friends. The Children's Commissioner for England in a recent report, where several children being deprived of their liberty were interviewed, highlighted the isolation experienced by the children. She found that contact with family and friends was very important for the majority of children, and that they wanted to be living closer to home. We know from an increasing body of evidence how important it is to a child’s overall wellbeing to be able to maintain relationships and it is not clear that these amendments will go any way to support children living in these settings, who are particularly isolated, to do this.?

• Finally, the changes don’t address the lack of access to justice for the families of these children. The details of the legal aid regime that will apply to this new form of arrangement are yet to be fully set out. The Government has indicated that it will mirror that which is available to children and families when an application for a secure accommodation order is made. But we know from evidence that more often than not, parents are unrepresented in applications to deprive their child of their liberty. Family Rights Group has already called on the Government to bring legal aid provision in line with that which is available to parents and children in care proceedings. We have also asked that parents and children have access to early advice when any (Family Court) deprivation of liberty proceedings are contemplated. This will help families understand what applications may be made and the processes involved. We are clear that this legal aid provision will also need to be available for children and families where an application to deprive a child of their liberty in “relevant accommodation” is contemplated or made, should these changes become law.?

When MPs are scrutinising this legislation, there are questions which surely need to be asked, including:?

• When will the regulations be brought forward and what matters will they address???

• Is it intended that the regulatory scheme applicable to ‘relevant accommodation’ arrangements will mirror the secure accommodation regulatory scheme???

• When will full details of the legal aid regime applicable to families and children, when an application under this route is contemplated or made, be available??

Our wider analysis of the Children's Wellbeing and Schools Bill can be found here.

Frances Edwards , Legal Adviser, Family Rights Group?