What do families need to know about deprivation of liberty orders (DOLs)?

Children’s social services apply to the High Court for a deprivation of liberty order when they want to deprive a child of their liberty in a setting which is not a secure children’s home. Only the High Court has powers to allow this to happen.

There can be different reasons why a child who needs to be deprived of their liberty cannot move to a secure children’s home. These include:

• There may be no places available in secure children’s homes
• A secure children’s home may have decided they are unable to meet the child’s needs

If children’s social services wanted a child to live in a secure children’s home they would apply for a secure accommodation order instead. That is an order that the Family Court can make.

For information and advice about secure children’s homes and secure accommodation orders see: What do families need to know about secure accommodation orders?

There are seven things the court needs to look at when making a deprivation of liberty order under the High Court’s inherent jurisdiction:

1. Whether the plan is in the child’s best interests (the High Court must apply the ‘welfare principle‘)
2. If the child is looked after by children’s services, whether the plan will safeguard and promote their welfare (in line with section 22(3) of the Children Act 1989)
3. The ways children’s social services say the child’s freedom may need to be restricted
4. Whether those restrictions are outside of what a parent would normally use for a child of that age
5. Whether the child or the child’s parents consent to the restrictions. This means do they agree for the child’s freedom to be restricted in the way children’s social services say is necessary
6. How the plan will affect the child and their family’s human rights. In particular the human right to liberty (freedom) and human right to a family and private life. Interfering with these human rights should only happen if it is necessary AND ‘proportionate.’ This means a child should only be deprived of their liberty if it is necessary to achieve keeping the child safe and well. And it is not going beyond what is needed to achieve that
7. Whether the child is likely to suffer significant harm if the order is not made.

To find out more about the human rights to liberty and to a private and family life please see Deprivation of liberty (DOLs) and secure accommodation orders for children.

A deprivation of liberty order should only last for as long as it is in the child’s best interests and is necessary to keep the child safe and well.

Children’s social services can only restrict a child’s freedom in the specific ways set out in the DOLs order. But they should only use those restrictions if they are needed to keep the child safe and well. This means:

• They do not have to always use all of the restrictions
• They should not continue to use any or all of the restrictions if they are no longer needed – even if the DOLs order is still in place.

Open or download this table to see the main duties children’s social services have. It describes each legal duty, where it can be found and whether it applies to:

• Children looked after under a court order
• Children looked after in a voluntary arrangement.

In England, if a child is described as a ‘looked after’ child it means that children’s services are responsible for:

• Arranging where the child lives
• Arranging who cares for them, and
• Safeguarding and promoting their welfare.

‘In care’ or ‘accommodated’?

Some looked after children enter or remain in the care system under a court order. This is because the Family Court has decided that is in their best interests and that that children’s services should have parental responsibility for them. These children are described as being ‘in care’.

Other children are looked after in the care system under a voluntary arrangement.  A voluntary arrangement can be put in place without any court oversight. It is not a court order. Children’s services do not have parental responsibility for a child looked after under a voluntary arrangement. So, children in voluntary arrangements are not described as being ‘in care’. Instead, they are described as ‘accommodated’ by children’s services.

The child is not automatically a party to proceedings. But they can be made a party by the court. Case law has told us that any child who is the subject of such an application to deprive them of their liberty should be joined as a party. If the child is joined as a party, then a children’s guardian must be appointed for them (Family Procedure Rules rule 16.4).

The child’s parents will automatically be made a party to proceedings. This includes parents without parental responsibility.

A testamentary guardian is someone appointed to care for the child. This typically occurs where a child’s parents have died and they appointed a guardian for their child in their will. If the child has a testamentary guardian, that guardian will automatically be joined as a party to proceedings.

The law says anyone who has an interest in or relationship to child will be a party to proceedings. It is likely this will include those who have parental responsibility for the child. Such as a kinship carer with a child arrangements order or special guardianship order.

In some situations it may include someone in the wider child’s network who does not have parental responsibility. This could be someone who is important to the child and closely involved in their life. Or a kinship carer who is raising the child but does not have parental responsibility for them. That person would need to show they do have an interest or relationship with the child before they could be a party to the proceedings.