Staffordshire County Council v Jake (a child) EWHC 2230 (Fam)
The High Court refused an application by a Local Authority’s children’s services for an order authorising the Deprivation of Liberty of a 16 year old boy, holding that the legal test had not been met and that the supervision provided by the Youth Justice Service and his licence conditions were sufficient.
Details
Deprivation of Liberty (DoLs) Orders, made by the High Court (Family Division), deprive children of their liberty, often in unregistered or unregulated placements, outside of the statutory regime (Secure Accommodation Orders: s25 Children Act 1989). The High Court has the power to deprive children of their liberty outside of the statutory regime under the court’s ‘inherent jurisdiction’.
On 4 July 2024, Jake was convicted of three serious sexual offences and sentenced to two and a half years in custody under section 250 of the Sentencing Act 2020.
Six days before Jake was due to be released on licence, Staffordshire City Council applied for a DoLs order in respect of Jake. Jake was due to be released under a licence comprised of thirteen conditions, including a curfew requirement between the hours of 9 pm and 7 am daily unless otherwise authorised by his supervising officer. Jake’s licence included a provision that failure to comply with any requirement of his supervision or otherwise posing a risk to the public would give rise to liability to have his licence revoked and be recalled into custody until the date on which his licence would have otherwise ended.
Children’s services expressed concerns as to the deficiency of the licence conditions, and in particular, that Jake would be free from restraint between 9 pm and 7am. They argued that a DoLs Order was required to “further support the management of his behaviour and promote public safety” (para 45) and “permit a stepping-down of the supervision of Jake” following his release (para 16). Accordingly, the DoLs Order sought by children’s services requested, amongst other things, that Jake would be subject to a 1:1 staff ratio at all times both within and outside his placement. The Youth Justice Service did not provide submissions in this case and therefore did not put forward a view.
Mr Recorder Adrian Jack concluded that the Local Authority had failed to show reasonable cause to believe, that should DoLs Order be refused, Jake would be likely to suffer significant harm, as required by section 100(4)(b) Children Act 1989. Instead, he considered management by the Youth Justice Service to be sufficient for three reasons:
- Submission by the Local Authority that there was no sanction for abscondment was wrong, and therefore the idea that there was no alternative to a DoLs Order was severely undermined. Rather, the licence conditions were stringent, imposing a sanction of prospective incarceration or imprisonment for breaches (para 29).
- The licence conditions themselves permitted a “step down’” as desired by the Local Authority and there is no basis for asserting that “the YOT [were] not cognisant [of] Jake’s needs in this regard’” (para 30).
- The Youth Justice Service hold the primary responsibility for Jake’s rehabilitation, and children’s services has only a secondary responsibility in that task. “It is not for the High Court sitting in its parens patriae jurisdiction to micro-manage what a body such as the YOT, which operates in a specialist area of the criminal justice system for young offenders, might consider the best course for managing a particular young offender released into the community on licence” (para 31).
Commentary
Although this is a family law case, there is substantial overlap with issues in the youth justice system and the judgment will be valuable to criminal practitioners in demonstrating the limits of the use of DoLs. It is a reminder of the legal test for DoLs order, a key element of which requires a Local Authority’s children’s services to demonstrate that the child themselves is likely to suffer significant harm if a DoLs order is not granted. A DoLs order is not a custodial sentence by another means and there is an overarching requirement for the family court to act in the child’s best interests.
Although the Youth Justice Service did not provide submissions, the judgment recognises and gives weight to the role of YJS in rehabilitating children and young people and in acting in the best interests of the children they supervise. Additionally, the judgment supports the principle that the Court should not invoke jurisdiction to ‘plug the systematic gaps’ in the child-care system caused by inadequate resources.