Many will be slow to forget the remarks of Sir James Munby P. in Re X (No 3)  EWHC 2036 (Fam) (3 August 2017) when commenting on the availability of secure accommodation for children suffering from mental health issues:
The lack of proper provision for X – and, one fears, too many like her – is an outrage.
That case was a terribly sad one: the young girl at the centre of it had a clear and genuine desire to end her own life and had made a number of attempts to do so. She needed specialist provision to protect her from herself. She was due to leave her current provision who had said they simply could not continue to meet the child’s needs. Their professional view was “to send her back to any community setting, especially [her home town] ‘is a suicide mission to a catastrophic level’. Staff do not think it will take more than 24 to 48 hours before they receive a phone call stating that X has made a successful attempt on her life”. The specialist provision she required was simply unavailable because of lack of resources for people with mental health difficulties, and especially young people with those needs.
The case garnered a great deal of press attention given the President’s strong remarks that society will have blood on our hands if, as a result of the lack of proper provision, the she were to succeed in her efforts to take her own life. A placement was ultimately secured, but only after converting an adult psychiatric intensive care unit into a children’s low secure unit following influence from senior figures in the NHS and the medical profession.
This theme was revisited by Hayden J only weeks later (24 August 2017) in Re F  EWHC 2189 (Fam). The Court determined that a 14 year old boy was a danger to himself and other young people, and so necessitated the provision of secure accommodation to protect himself and the public more broadly. Again, there was no beds available due to the shortage. The judge directed that a copy of that judgment be sent to the Secretary of State for Education.
On 13 September 2017, a similar case was heard by HHJ Rowe QC as the Designated Family Judge for West London (Re M  EWFC B61). The child in this case, a 15 year old boy, had a history of absconding from his family. When absconding, he placed both himself and others at risk of significant harm. The Court had determined that he required a psychiatric examination in order to determine his long term placement options, and what was ultimately in his best interests. His being accommodated in secure accommodation would help facilitate this assessment. Once again, there were no beds available for this troubled boy despite every effort being made by the local authority.
Those who practise in public children cases will readily acknowledge that these cases are not by any stretch exceptional. It is often the case that local authorities simply cannot find beds for children who need these specialist provisions. A vicious circle follows when a bed is found, but the child is missing and so that bed is lost. When the child is located, there are no beds and so the cycle repeats. The President recognised this in a reported judgement regarding X in Re X (No 4)  EWHC 2084 (Fam):
I cannot escape the powerful feeling that, but for my judgment, the steps subsequently taken would have been neither as effective nor as speedily effective as appears to have been the case. This, however, is not a matter for congratulation; on the contrary, it is, of itself, yet further cause for concern. The provision of the care that someone like X needs should not be dependent upon judicial involvement, nor should someone like X be privileged just because her case comes before a very senior judge. I emphasise this because a mass of informed, if anecdotal, opinion indicates that X’s is not an isolated case and that there are far too many young women in similar predicaments. How are they to be protected?
The concerns of the President must be echoed loudly and frequently. These cases come before the courts every day, most often before district and circuit judges. Would any director of NHS England, the Deputy Mental Health, Programme of Care and High Secure Lead, or the President of the Royal College of Psychiatrists have acted personally and so quickly as they did for X if the remarks had been made by those judges rather than the President of the Family Division? Unlikely. But should it take the President to make these unprecedented comments to find these provisions? Absolutely not.
The test for authorising the use of secure accommodation is a stringent one, and so where secure accommodation is authorised it is because of real need to protect the child or other people. The Court must be satisfied (s.25 Children Act 1989):
(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii) if he absconds, he is likely to suffer significant harm; or
(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.
Most social workers recognise the Draconian nature of these orders, and so it is only where it is thought necessary that a local authority considers making these applications – truly a last resort. It makes it even more worrying that there is such a scarcity of resources.
In each of these cases, the Court has laid the blame at the door of the Secretary of State for Education. It is vital that steps are urgently taken to address this need. The consequences of failure to do so for some of the most vulnerable children in our society can be life or death. Theresa May has pledged to tackle the woefully inadequate provisions for those in our society who suffer from mental health difficulties. Little appears to have been done to meet that promise to date. It was shown in X that it can be done; although the ad hoc nature of provision in that case is not something that ought to be encouraged. The promises that have been made must be met.
Late though it has come, the judiciary must continue to highlight these failings to the executive, and must do so publicly. Only then perhaps will the public recognise that real harm that is being caused, and will the executive take steps to remedy it.