Article by Caroline Shields: Launch of the new National Deprivation of Liberty (DoLs) Court today – 4 July 2022
Caroline ShieldsThe President of the Family Division has announced the launch of a new National DoLs Court at the Royal Courts of Justice, with all new applications to deprive children of their liberty being issued in the Royal Courts of Justice from today, 4 July 2022. This is in response to the rise in such applications which has increased by 462% in the period of three years to 2020/21 (https://www.nuffieldfjo.org.uk/news/number-of-applications-to-deprive-children-of-their-liberty-in-unregulated-placements-rises-by-463-in-three-years).
The Nuffield Family Justice Observatory state that “Children in England and Wales can be deprived of their liberty for welfare (risks to their safety), youth justice or mental health reasons, and placed in secure children’s homes, young offender institutions, secure training centres or mental health in-patient wards. An increasing number of children are also being deprived of their liberty in unregistered placements.” And, “Unlike children held in other settings, children deprived of their liberty under the inherent jurisdiction [i.e. in placements not designed to restrain their liberty, for example, secure units] don’t appear in published administrative data or records. This is a major cause for concern as there is no public record of where they are placed, what restrictions are placed on their liberty, or their outcomes.”
Until now, applications for orders under the inherent jurisdiction are made on form C66 issued at the High Court, or within an application in care proceedings requiring s.9 allocation (a practice which has developed in line with the procedural requirements set out by Munby P in A-F (Children) [2018] EWHC 138). From 4 July all applications for orders depriving a child of her/his liberty are to be made at the RCJ at the National DoLs Court where the data will be monitored by the Nuffield Family Justice Observatory. In the absence of any published guidance (at the time of writing) regarding applications in care proceedings, it would seem logical that a C66 is also now submitted directly to the RCJ in addition to any application to the family court where the care plan requires a deprivation of the child’s liberty, making it clear that there are concurrent care proceedings.
The launch of the new DoLs court neatly coincides with the recently published case of Bolton Council v KL [2022] EWCOP 24 (21 June 2022) (HHJ Hilder) in which the Senior Judge considered the application process in the Court of Protection for 16 and 17 year olds involving a deprivation of liberty, noting that the streamlined application process (COPDOL 11) will often not be appropriate in such cases as a result of the complexity arising from an overlap in the legislation relating to children. This case highlights the complexity in the care, planning, and judicial scrutiny of arrangements for children and young people where a deprivation of liberty is being sought to safeguard a child’s welfare. It also demonstrates the need for an overarching scrutiny of the data involving deprivations of liberty of children and young people, as the new DoLs court will allow.
The launch of the new DoLS Court should thus provide a route to gathering the data required to develop a better understanding of the needs of children with challenging care requirements as they transition into adulthood, as well as providing a clearer avenue through the judicial process for DoLs applications relating to children.
4 July 2022
Contact Caroline’s clerks
Paul Foster (Senior Court of Protection Clerk) on 0113 213 5209