The country’s most senior family judge has accused the education secretary of “complacency bordering on cynicism” in a scathing judgment that deplores the lack of secure, therapeutic placements in England and Wales for scores of children with complex needs at risk of taking their own lives.
Dealing with a case involving a 15-year-old girl in care known as X, who experienced trauma in early childhood and has repeatedly self-harmed, absconded, threatened herself and others and spoken of suicide, the president of the family division, Sir Andrew McFarlane, lambasted Gillian Keegan for asking to be excused from coming to court to account for failures to keep the child and others like her safe.
In a ruling that invokes the right to life and the right to protection from inhuman and degrading treatment, the president said it was “scandalous” that when a court ordered secure accommodation for a child’s safety, there could be little assurance that a placement would be found.
He expressed disagreement with the secretary of state’s position that the government had nothing to contribute on the issue of lack of secure placements for children at risk of self-harm and suicide, saying: “It was, I observed, shocking to see that the Department for Education seemed to be simply washing its hands of this chronic problem.”
The judge refused Keegan’s request to absent herself, insisting that the education secretary should engage with the court’s concerns.
High court judges “now spend a fair proportion of their time on cases of this nature, and much of that time is generated because there are not sufficient, suitable secure children’s homes for those who need secure accommodation,” said McFarlane, setting out the detail of 13 previous cases in which senior judges expressed alarm at the plight of vulnerable children for whom no secure placement could be found, and whose physical and mental wellbeing suffered as a result.
“I therefore expressed my surprise that the secretary of state’s response was simply to say that this desperate situation was not her responsibility and, indeed, it would be a waste of public money even to engage with the court in considering the mismatch between the demand for secure welfare placements and the supply of them.”
England has 128 regulated secure placements available to local authorities, which have the statutory duty to accommodate children who require constant supervision.
A statement to the court from the social worker for the girl in this case demonstrates a stark inability to keep her safe. “As at 14 November 2022, at 11.52am there are 72 live referrals [for secure placements in England and Wales] and two projected beds in the secure welfare estate. These two beds are suitable for males only. Therefore, there is currently no provision for X to be placed in secure accommodation.”
Courts are regularly informed that 60 to 70 children are chasing fewer than a handful of placements. A Guardian freedom of information request last autumn backs this up. On 15 September, 58 children were chasing just two secure placements; a week later, 62 children required a bed but only three were on offer. When no placements are available in England, children can be sent far from their families to Scotland, or are placed in ad hoc, unregulated accommodation – or wait for weeks, sometimes months, on general wards in hospital, where their condition frequently deteriorates.
Carolyne Willow, the director of children’s rights charity Article 39, said: “This must be a watershed moment, when the prime minister and cabinet face up to the dire consequences of the grave deterioration of the children’s care system, whereby the lack of specialist secure provision is sending scores of children to Scotland and hundreds more being dispersed across the country into ad hoc arrangements which are inherently unsuitable and carry great risk.
“Sir Andrew McFarlane is absolutely right that it is the government’s responsibility to ensure that local authorities have the resources to fulfil their statutory obligations … this exceptional judgment demands a weighty response from government and parliament, and ministers and shadow ministers ought to be publicly confirming they have read it line by line. Then we need a national taskforce that has the credibility, expertise and funds to respond to this crisis.”
The children’s commissioner declined to comment, while acknowledging this was an area of concern.
The Department for Education noted that the education secretary met McFarlane last week to discuss the case.
The minister for children and families, Claire Coutinho, said: “I am committed to working with the judiciary and other partners on bettering outcomes for vulnerable children and ensuring we have robust early intervention and support, as well as the right level of children’s social care placements.”
The DfE has a £259m capital investment programme in the secure children’s homes estate that is planned to bring about 50 new placements in the medium term.
