Vulnerable children with complex needs are being locked away in unregulated placements and are being “gravely damaged by the state” while their parents are driven to despair, according to England and Wales’s former top family judge. Sir James Munby terms the lack of provision of safe and therapeutic homes “a shocking moral failure”.
According to the Nuffield Family Justice Observatory, the number of applications for “deprivation of liberty” orders for children suffering from psychological and behavioural difficulties reached 1,368 last year.
Writing in theObserver, Munby, the immediate past president of the family division of the high court, said that soaring applications for this draconian measure were a sad reflection of the catastrophic failure to support children whose complex needs frequently lead to self-harm and suicide attempts.
Lambasting the government, which he said has “failed to address the dire lack of suitable provision”, Munby referred to “dozens and dozens” of judgments expressing his fellow judges’ concerns, which have been published since his own “blood on our hands” ruling about a 17-year-old girl called “X”, which made national headlines in 2017.
Reporting by the news site Tortoise Media last year showed that “any help X received came far too late to save her”, Munby said. Barely into her 20s, X – not a criminal – was ultimately incarcerated in a high security mental health hospital, where she remains.
“Seven years on from my judgment about her case, the situation for other children countrywide is even worse that I dared to fear,” he warned.
In 2021, the supreme court called the plight of these children “a scandal containing all the ingredients for a tragedy”. Persistent efforts over years by journalists to publicise the escalating crisis meant no one can ever claim the scandal is a hidden one, Munby writes, citing the recent “shocking” investigation by the BBC, which interviewed children on their “heartbreaking” experiences of being forcibly detained in unsuitable placements under deprivation of liberty orders.
The Observer recently reported on hundreds of very vulnerable children being sent to unregulated homes because of a chronic shortage of secure local authority units.
Meanwhile, the government has done nothing of any substance or value to help these most vulnerable children, Munby says.
His successor, Sir Andrew McFarlane, attempted last year to engage the secretary of state for education, Gillian Keegan, in the situation of another suicidal teenage girl for whom no secure, therapeutic placement could be found.
In a highly unusual move, McFarlane called on Keegan to come to court. After refusing her request to be excused, his published judgment expressed his “genuine surprise and real dismay that the issue has, seemingly, not been taken up in any meaningful way in parliament, in government, or in wider public debate.”
McFarlane said: “It was, I observed, shocking to see that the Department for Education seemed to be simply washing its hands of this chronic problem.”
Munby warns that the many published judgments about distressed and damaged children detained with no contact with the outside world “paint a picture of a system unable to cope with the rising numbers of young people with emotional and behavioural difficulties, almost always born out of trauma or neglect in childhood”.
When a system is routinely locking up vulnerable children in highly inappropriate settings, the country is faced with “yet another shocking moral failure – a moral failure by the state and by society” he says, before questioning whether any party would address the issue during the election campaign.
• This article was amended on 9 June 2024. Due to an editing error, an earlier version said that Gillian Keegan refused to go to court when ordered to by Sir Andrew McFarlane. In fact she asked to be excused and when that was refused she sent a representative. Also, McFarlane was the former top family judge for England and Wales, not just England.
