Access to justice when children are deprived of their liberty

Dear Secretary of State for Justice, 

Every year, thousands of children are deprived of their liberty by the Family Court. 

Depriving a child of their liberty involves the state restricting the child’s freedom in some way. It often means a child is confined in a particular place. Or that their movements are constrained and supervised in ways which are different to how you would expect a parent to care for a child of that age. It engages the child’s right to liberty under Article 5 of the European Convention of Human Rights. It can have a significant impact on their mental and physical wellbeing and lead to them being isolated and subject to high levels of restraint.  

It can also be difficult to identify and secure an appropriate home for the child. Too often this results in children living in settings which do not meet their needs and are far away from their families and communities. Far from familiar people who might be able to offer them support, and comfort during what is likely to be the scariest of times.   

Whether the Family Court deprives a child of their liberty under a secure accommodation order or an order made by the High Court using powers known as the inherent jurisdiction, it is a draconian measure. So frequent are applications under the latter route that a dedicated National Deprivation of Liberty Court was established in July 2022 to keep track. In its first year, applications involving 1249 children were made. 

Yet too often parents and carers have no access to information and legal advice when their child is, or may be, deprived of their liberty. Where court applications are made, many are unrepresented, left to navigate confusing and distressing proceedings alone. Nuffield Family Justice Observatory found that 88.5% of parents and carers were not legally represented at any hearings in applications made under the High Court’s inherent jurisdiction. Ministry of Justice data shows a very low level of legal representation in secure accommodation order cases too.  

Family Rights Group has analysed the legal aid regime in these situations and found it riddled with anomalies and injustices. For example, a parent whose child is subject to care proceedings is entitled to legal aid to fund representation in those proceedings. This is not means tested and only a low merits test applies. It reflects an acknowledgement that families must be legally represented when the state is considering removing their child. The same cannot be said in relation to deprivation of liberty proceedings. Instead, the financial situation of parents and carers, and a more stringent merits test, will determine whether they receive legal aid. 

The impact of this on children and families is significant. Whether, where and how a child will be deprived of their liberty are questions without straightforward answers. The relevant law is complex and the potential consequences for the child and their family significant. Access to legal advice and representation both before and during any court proceedings, is vital so that families can understand what is happening and what their options are. It enables families and children to be involved in planning for the child. It is also an important part of making sure fair process for the child and family is followed, in and outside of court.  

Family Rights Group have put forward clear proposals in a briefing note for legal aid reform in deprivation of liberty cases. These include aligning the level of legal aid available with that available to parents and children in care proceedings. This would mirror the recent changes the Ministry made to legal aid for parents (and other persons with parental responsibility) in adoption and placement order proceedings. The proposals also include improving access to early advice for parents and children, when deprivation of liberty proceedings are contemplated. They will help families understand what applications may be made and the processes involved. 

As signatories to this joint letter, we are calling on Government to urgently address these injustices. With such high numbers of children being deprived of their liberty by the Family Court, there is no time for delay.

Yours sincerely

Family Rights Group

Article 39

The Association of Lawyers for Children

Ben Hoare Bell LLP

Bindmans LLP

The Centre for Innovation and Research in Childhood and Youth (CIRCY) at the University of Sussex

Children’s Legal Centre Wales/Canolfan Gyfreithiol y Plant Cymru 

Clan Childlaw

Dere Street Barristers

David Gray Solicitors

Dawson Cornwell LLP

Dept. of Social Work and Social Care at the University of Sussex

Family Justice Quality Circle

Goodman Ray Solicitors

Hecht Montgomery Solicitors

Kinship Carers UK

Osbornes Law

Resolution

Stephensons LLP

TV Edwards LLP