A judge has criticised a situation in which a vulnerable teenage girl who “falls between two stools” cannot get the accommodation she needs.
The case is further complicated because a regulatory change due next month will prevent the girl’s accommodation in unregistered premises.
In W (Young Person: Unavailability of Suitable Placement)  EWHC 2345 (Fam) Mrs Justice Knowles said: “This is, sadly, yet another case in which a young person is exhibiting emotional and behavioural difficulties consequent on past trauma where they are assessed as not meeting the criteria for detention under the [Mental Health Act] and the therapeutic treatment which they urgently require within a restrictive environment is not available. This is a depressingly familiar scenario to the judges of the Family Division.”
W is 15 and detained in a side room of an adult surgical ward in a general hospital, after Knowles J granted an order in July that permitted the hospital trust to deprive W of her liberty as she was actively suicidal and putting others at risk.
“Put simply, W was detained in hospital because there was no suitable community placement available to accommodate her even though she was medically fit for discharge,” the judges said.
“Though arrangements for her care in the community have been made which I am persuaded to authorise, those arrangements are likely to be short lived because of changes to the regulations concerning the placement of children in unregistered and/or unregulated settings which are due to come into force on 9 September 2021. Thus, this court will, once more, need to consider the arrangements for W's care in mid-September.”
The local authority maintains an individual placement, with a high staff to child ratio, is in W's interests.
The question arose of whether the Care Quality Commission’s registration of the care agency due to provide a place for W was sufficient, or whether the staff involved would also require Ofsted registration as providers of a ‘children's home’.
Ofsted told the court the case was one of a number known to it in which the same issues in relation to registration arose.
Knowles J said the intended placement “will not only be potentially illegal but will be unlawful with effect from 9 September 2021 because of the amendments contained within the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021”.
She added: “The local authority entirely accepts the aims and appropriateness of the new regulatory framework, given the widely publicised difficulties caused by the use of unregistered children's homes.
"However, whilst the government has increased national funding for the expansion of the network of children's homes, there is a paucity of provision at this time.
“W is a young person who will not benefit from such an institutional setting and who cannot be placed in the alternative of foster care given the extent of her difficulties. She falls between two stools.”
Given this, the local authority said it would “search the already inundated system for a bed in secure accommodation” and consider whether the current placement can instead become a foster placement.
The judge asked: “What is the local authority to do if there is no secure accommodation available and no other appropriately regulated type of placement which might meet W's needs?”
She cited a Supreme Court judgment by Lady Black, who said that the inherent jurisdiction had to be used to fill such gaps, and said a further hearing would be held in September to decide on this.
The judge noted:“The aim of the amendment is to ensure that looked after children under the age of 16 are only placed in children’s homes or foster care.
"Whilst there are obvious concerns about placing children in unregistered accommodation, it will be immediately apparent that finding or creating a bespoke placement for a young person who urgently needs care will be considerably harder following 9 September 2021.”