Summary

In a recently published judgment, the court has once again highlighted the extreme difficulties faced by young people with behavioural issues in our society, as well as the problems facing those who are tasked with the responsibility for commissioning and providing their care.

In this article, we report on a case about care proceedings that may seem all-too-familiar to CCGs and CAMHS services, and on a proposed new legal duty on CCGs to address the chronic shortage of appropriate placements for young people with behavioural difficulties across the UK.

What was the case about?

Tradition dictates that judges publish their reasoning in cases where they decide to increase awareness of the reasons behind making particular court orders, and to ensure that there is transparency of the judicial decision making process.

But in recent times, some judges have taken to using their public platform to shed a light on issues that go beyond the power of the court to deal with, as a wider comment on the state of society. In this judgment, HHJ Dancey makes it clear that he is writing to “tell the story” of A, a girl aged 15 ½ years.

Without reciting the full details, he describes A’s troubled upbringing which has resulted, according to a court appointed psychologist, in anger, dysregulation and problems forming close relationships. This has led to aggression towards others, exclusion from school, and her routinely putting herself at risk if not kept in a tightly regulated environment.

Care proceedings were issued in January 2019, and the judge charts a catalogue of failed placements, thwarted efforts, and a situation that has gone from one crisis to the next, to the dismay and frustration of all involved. When a hearing took place on 30 September 2019, the judge recites:

“A did not attend that hearing. A’s solicitor, Ms Cowlard, told me she couldn’t see the point. Who could disagree?”

It can be tempting for those at a distance from front line practice to criticise those trying to provide care management, although HHJ Dancey takes a more sympathetic view, describing the social workers working tirelessly over “silly hours”. However, he summarises the consequences for A as follows:

1. no residential placement or any sense of permanence or stability;
2. by my count, excluding the initial foster placements, 10 placements over the course of a year, all bar two of them unregulated, and lasting from a few months to a few days;
3. still no formal education;
4. no real chance to address the things the Court appointed psychologist was talking about in his report;
5. a situation within which A stayed with her mother in an unplanned way and there was an argument between them which will not have helped their relationship;
6. break down in trust between A and the professionals (however hard they might be working to support her).

He finishes succinctly:

“The problems are huge. That is why I have told A’s story.”

Comment

This is not the first time the shortage of specialist accommodation for teenagers has been criticised by the judiciary in recent years, however this judgment sadly highlights that despite shining a light on the issue, it is far from being resolved.

In our experience this case is certainly not exceptional; it is an all too regular occurrence for legal issues to arise from, or run up against, a lack of appropriate placements for those with challenging behaviours; for young people in particular, although realistically across all ages.

Although there is no reference to ‘health’ involvement in A’s case, the same issues are at the forefront of difficulties for many patients with a mental health diagnosis or autism / learning disability, where healthcare providers and commissioners are more likely to be involved. But employees of CCGs and CAMHS services cannot conjure up appropriate placements to fill the shortage any more than social workers or judges can.

Is there a legal solution to this national problem?

Questions are currently being asked at a parliamentary level about the role of commissioning law in dealing with the issue of shortage of specialist community placements.

In respect of young people with learning disability / autism, the Parliamentary Joint Select Committee on Human Rights has recommended the creation of specific legal duties on CCGs and local authorities to ensure that the right services are available in the community, with an eye on getting people with that diagnosis out of detention in mental health hospitals.

However, any impetus for legal change is still at an early stage and comes at a time when our legislative resources are still being absorbed by Brexit.

Furthermore, it is far from clear how this would operate, let alone whether such a move would result in positive change.

Commissioners are already well aware of the situation and their duties to commission appropriate services for patients, and local authorities already have an existing duty to promote the efficient and effective operation of their local care market.

The law can be changed to introduce new legal responsibilities, but without the money to meet them, we may be no further forward to a solution. It is no coincidence that when telling A’s story, HHJ Dancey included in the title of his judgment – Residential Placement: Lack of Resources.

We will continue to keep an eye on this proposal to introduce a new duty for CCGs and keep you informed. In the meantime, we regularly advise on how to navigate safeguarding, commissioning responsibilities and the expectations for the court in this difficult climate. If you would like to discuss further with us then please get in touch.