The Growing Crisis of Deprivation of Liberty (DoL) Orders for Vulnerable Children

The increasing use of Deprivation of Liberty (DoL) orders for vulnerable children in England and Wales has become a pressing issue, described by Sir Andrew McFarlane, the most senior family court judge in England, as a "crisis." These orders, meant as a last resort to protect at-risk children, have seen a dramatic rise in recent years, reflecting deep concerns within the child protection and legal systems.

Understanding Deprivation of Liberty Orders

A DoL order allows a local authority to place a child under restrictions that deprive them of their liberty, often in situations where no other options are available to ensure their safety. This measure is typically considered when secure accommodation or suitable placements are unavailable. The restrictions can be highly stringent, including confinement and constant supervision, with workers authorised to physically restrain the child if necessary.

The Escalation of DoL Orders

The use of DoL orders has escalated significantly. According to the Children and Family Court Advisory and Support Service (Cafcass), applications for these orders in England increased from 102 in 2017-2018 to 1,234 in 2023-2024, with the majority being granted. This surge has been mirrored in Wales, with rising applications noted in the latest Ministry of Justice data.

Scotland operates a different system, external to restrict the liberty of vulnerable children, and the use of restraint and seclusion is only allowed under very specific, regulated circumstances.

Impact on Vulnerable Children

The implications of these orders on children are profound. Many are placed in properties not designed for care, such as temporary accommodations or hotels, often far from their homes. In the latter half of 2022, the average DoL placement was more than 55 miles away from the child's home. This dislocation can exacerbate the child's vulnerability and feelings of isolation.

Legal and Ethical Concerns

The dramatic increase in DoL orders has sparked criticism from various quarters. The Children’s Commissioner for England has described the impact as "absolutely horrific" and a "national scandal." Concerns revolve around the ethical implications of severely restricting a child's liberty and the lack of suitable alternatives. Judges often face difficult decisions, feeling uneasy about "containing" a teenager far from their home, yet compelled to act to mitigate greater risks.

Legal Framework and Guidance

In response to these growing concerns, the Law Society has updated its guidance on the law relating to deprivation of liberty. It includes an overview of the legal framework, including the special considerations relating to those under 18.

This guidance is crucial for solicitors and professionals in health and social care to recognise and address potential deprivations of liberty. It covers various settings, including hospitals, psychiatric care, care homes, supported living, and palliative care, providing a comprehensive legal framework and practical scenarios to identify and mitigate liberty-restricting factors. Please find the updated guidance provided by the Law Society here.

Future Directions and Solutions

The government's recent establishment of a panel of experts to investigate the rise in DoL orders is a positive step towards addressing this issue. There is a pressing need for a systemic review and the development of more suitable and humane alternatives to DoL orders. This includes increasing the availability of secure accommodations and tailored care placements that can adequately support children with complex needs.

Conclusion

The rise in Deprivation of Liberty orders for vulnerable children highlights significant challenges within the child protection system. While these orders aim to safeguard at-risk children, their growing use underscores the urgent need for comprehensive reforms and better resources. Ensuring the well-being and rights of vulnerable children must remain a priority, with concerted efforts from legal, social care, and government bodies to find and implement more effective and compassionate solutions.

In March this year, the Law Society updated its guidance on the law relating to deprivation of liberty. It includes an overview of the legal framework, including the special considerations relating to those under 18. This guidance will help solicitors and people working in health and social care to identify when a deprivation of liberty may be taking place.

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