The most venerable of all the faultlines in politics is equality vs liberty. In more recent times, the likes of Nick Clegg and in some moods George Osborne gave it a twist. They insisted that we could chart a “progressive” path through austerity, by contrasting the old, top-down egalitarian state with a pared-back, smart government which would let us hold on to more of our earnings, while also ensuring equality of opportunity—or the freedom to make our own luck.
But a dozen years after the retrenchment began, both freedom and opportunity are proving illusory for the most vulnerable in our society. Lisa Harker of the Nuffield Family Justice Observatory is shining a spotlight on the desperately unlucky children whom the authorities deprive of liberty on grounds of their own welfare.
These are not kids locked up in detention centres for committing crimes, nor are they youngsters who can be lawfully held in mental health facilities as a direct risk to either their own life or that of others. Rather, they are typically children with a pattern of behaviour—repeat absconding, being drawn towards those who pose a danger to them—that leaves them prone to such perils as being trafficked for sex or sleeping out in the cold. Needless to say, they have often experienced privation or trauma.
Perhaps there will always be some such children who fall through every other safety net: the test for society is just how many, and what we are able to do for them. Harker points to damning evidence on both counts.
Taking the second point first, what we would surely want to happen in these difficult cases is for any deprivation of freedom to be imposed only after the contours of the individual case had been carefully measured against rules written with vulnerable children in mind. We would also want for such a child, who is not—remember—guilty of any crime, to be placed in a specially-designed home which was not only secure, but also had the means to support a life worth living and to keep the restrictions to a carefully-calibrated minimum. Last but not least, you would want careful tabs to be kept on the progress the child was making, both for their own welfare and to help ensure that the right balance can be struck in similarly fraught cases in future.
What has increasingly been happening in such cases is pretty well the polar opposite of all this. There is a bespoke set of rules governing restrictions on children’s liberty under section 25 (s25) of the 1989 Children Act, which gives important protections such as ensuring a child’s right to legal representation. Increasingly, however, these are not the rules being used: instead, the High Court is making more orders to deprive children of liberty under fall-back powers that emerge from its “inherent jurisdiction.”
Why? Well, those bespoke s25 rules govern placements to bespoke secure children’s homes—that, after all, is the way the system is meant to work. But such places are in painfully short supply, even when cash-strapped councils are persuaded they need to pay for them. (They are arranged nationally but locally funded). In 2020, only half of the children referred for a place in such a home were actually allocated it.
Meanwhile, the number of “inherent jurisdiction” High Court orders, which are in theory only for use as the ultimate backstop, has shot through the roof: up by 462 per cent to a total of 579 in 2020/21. These orders can allow for the restriction of a child’s liberty in an “unregulated placement.”
That bit of bureaucratese is worth pausing on, and Harker spells out what it means: children deprived of their liberty and “often ending up” languishing “in caravans or holiday lets.” It is hard to imagine anyone with less opportunity or freedom to forge their own future than a troubled youngster locked in a caravan.
As for the state, it seems less “smart” than stupid in its failure to monitor what is happening in such cases. We can see the rising total number of High Court orders being made, but know precious little about the stories behind them, the places those affected are sent to—or indeed what happens to them next. The Family Justice Observatory is left ploughing through individual court judgments, and hopes that by collating them it will soon be able to fill in parts of this bleak canvass. In the meantime, we are not only denying the country’s most vulnerable children liberty and an equal chance, but condemning them to live in the dark.
