Author: Graeme Bentley, Principal Solicitor – Child Protection at Invicta Law.
It can often appear in children’s cases that the proverbial buck always stops with the Local Authority Social Services team. It is therefore interesting to see a High Court Judge decline to make an order for deprivation of liberty on the basis that the child is the responsibility of another agency, even if that agency is part of the Local Authority itself.
Background
In Re: Jake [2025] EWHC 2230 Fam, Recorder Jack considered the position of a young offender who is subject to the licensing regime in criminal proceedings. Jake had been removed to care as a young child but raised by his grandmother under a special guardianship order following a sexual assault by a 17-year-old at his foster placement. He had returned to the care system when his grandmother started to struggle with his behaviours linked to childhood trauma and was made the subject of a full care order. He struggled with drugs and alcohol, was at risk of exploitation and was absconding. He was assessed as being at high risk of re-offending, posed a serious risk of harm to others and was considered to be at risk to his own safety and well-being.
Jake had been convicted in July 2024 of three serious sexual offences and sentenced to 2 and a half years’ custody. He had been released on licence in July 2025 (having served half of his sentence) with the terms extending to October 2026. There were thirteen conditions to his licence which included his confining himself to an address approved by his supervising officer between the hours of 21:00 and 07:00 daily, complying with the supervisor’s requirements aimed at addressing his sexual offending, and to register and engage with Education and Housing. The conditions specifically warned of the potential revocation of Jake’s licence in the event of breach.
The Local Authority’s Application for DOLS
The Local Authority envisaged a residential placement for twelve weeks (thereafter reviewed monthly) in order to complete therapy and work specified on the licence conditions. The restrictions of liberty sought (for an initial three-month period but with a review at six weeks) were in familiar terms – a 1:1 supervision ratio, monitoring alarm in the bedroom, window restrictors with reasonable and proportionate restraint where required; all of them designed to prevent his absconding. There was concern that, having made progress in the highly structured and controlled environment of a detention centre, Jake would not necessarily maintain this in a less restrictive environment. Transition to the community was in its infancy. There should be a legal mechanism to prevent Jake leaving the placement and placing himself at risk of harm during the daytime hours. This would enable an appropriate step-down process, the restrictions being understood to be permissive.
The child’s guardian did not support DOLS, being of the view that there was already a curfew in place, that there had been insufficient preparation work with Youth Offending Services and that the restrictions were attempting to compel the implementation of therapy that should have commenced earlier. The Youth Offender Team (YOT) would be able to pick up the therapy issue. There was no evidence that Jake would fail to engage in support work and therapy. The risks could be managed by the Local Authority and by the YOT under the licence conditions which clearly set out the boundaries.
Judicial Analysis and the Role of the YOT
The Judge said that the requirements of section 100 Children Act 1989 were partly made out, as there was no other order for which the Local Authority could apply. However, it could not be shown that Jake was likely to suffer significant harm in the absence of a DOLS order. The Judge disagreed on there being a potential absence of legal mechanism or authority to prevent absconding or Jake placing himself at risk.
Looking at the licence conditions and the role of the YOT:
- There were already draconian sanctions which provided a very strong incentive for Jake to comply. If he failed to be of good behaviour or behaved in a way that undermined the purpose of the licence period, he could be brought back to the detention centre and incarcerated until October 2026.
- There was already the ability to “step down” flexibly and no basis to suppose that there was a risk of challenge in the civil courts to the supervisor’s decisions. There were requirements in relation to addressing Jake’s sexual offending, his education, housing and social networks.
- The primary organ of the state with responsibility for rehabilitating young offenders was the local Youth Justice Services, not the local Social Services Department (which had only a secondary responsibility for Jake’s rehabilitation).
It is easy to follow why, in this case, the Local Authority resolved to be on the safe side and to attempt to plug what it saw as a lacuna in the daytime care arrangements. Particularly where the YOT is itself an arm of the Local Authority and it may be assumed that the third limb of the Storck* case (attributability to the state) is made out. It may be difficult in that context to understand the assertion that the role of the Children’s Social Services team is only secondary, and one wonders whether things would be seen that way in the public eye should Jake attract publicity in the future.
The Judge referred to section 58 of the Sentencing Act 2020 and to the Sentencing Guideline Council’s “Sentencing Children and Young People” both of which referred to the issue of the child’s welfare. These overlapped with (though were not identical to) the welfare test of section 1(1) Children Act 1989. It was not, however, seen as necessary to consider how far any differences should affect the Family Court’s approach to making a DOLS order. The Judge does not appear to have heard argument on that issue, and it would be interesting to see whether it features in the event of an appeal for which he made provision at the conclusion of the judgment. One wonders also whether the decisions of a supervisor can (or perhaps should) be quite as immune from judicial challenge as the Judge suggests.
While it is difficult to envisage one part of the Local Authority serving another with notice of proceedings, the position may be different where, for example, there is a dispute with Health about whether the case should be being managed under mental health legislation. In such cases it may be (as sometimes happens in contested designation cases) that the Local Authority resolves to issue and to place the matter in the hands of the Court, but to seek directions for the joinder of the Health Authority as respondent or for the filing of evidence. It may be worthwhile, in appropriate cases, to provide prior notice of the application.
*Storck v Germany 61603/00
Disclaimer: This article does not constitute legal advice and is provided for general information purposes only. Published 12 September 2025.
