Public Law Case Law Update
April 2026
The judge in this case, Mr Justice McKendrick, was concerned with a 13-year-old girl called BA and whether she should be subject to a Deprivation of Liberty (‘DOLS’) order. He published his judgment because, despite the matter being heard in private, the judge considered it in the public interest to know about what happened as “It is intolerable that a highly vulnerable child has been detained in a room without windows, in a busy and noisy accident and emergency ward, for nearly two and half months” [para 22].
Background
BA has a diagnosis of conduct disorder and ADHD and, at the time of the judgment, a working diagnosis of autism whilst she was awaiting assessment for ASD.
BA is a confident and articulate reader with an equivalent reading age of 16+. She likes animals and is known to be caring and nurturing.
In mid-2025, BA’s mental health became so dysregulated that her parents were no longer able to safely care for her. She was experiencing frequent missing episodes, engaging in self-harm, expressing suicidal ideation and was displaying violence and aggression at home requiring the intervention of the police and various first responders. Further, BA was permanently excluded from school in March 2025, prior to her EHCP being issued on 20 May 2025.
BA was unfortunately not engaging with community mental health services including CAHMS and the Home Treatment team. In May 2025, BA was sectioned under section 2 of the Mental Health Act 1983 and around a month later on 10 June 2025 this was converted to a longer-term section 3 detention.
On 10 December 2025, an interim care order was made on the basis that BA was beyond parental control following her parents accepting that they were unable to care for her at home. On the same day, a deprivation of liberty order was made by a deputy district judge in order to safely effect BA’s discharge from hospital.
On 11 December 2025, BA was discharged from the mental health hospital into a “solo” placement which McKendrick J described as not being clear in terms of actual concrete provision and lacking in consideration of any educational provision or BA’s EHCP. Further, whilst BA was spoken to about the placement, she was considered not competent to make a decision about moving there and appeared to not have been given an opportunity to visit and form her own view. McKendrick J described this as a “depressingly” all too frequent occurrence.
Unfortunately, the placement quickly broke down following BA demonstrating increasingly violent and self-harming behaviours in January 2026 and she was admitted to hospital as an out-patient but discharged back to the placement. On 8 January 2026, BA’s placement gave notice to terminate, and she has remained in hospital since then.
She is in a single, windowless room with an ensuite within a noisy paediatric A&E ward. She is receiving no education, and it appeared that on the 3 March 2026 that her EHCP had not been reviewed for some time. She was escorted to the hospital garden “on occasion”.
On 13 January 2026, a Deputy High Court Judge made a deprivation of liberty order with the following restrictions [para 11]:
a. BA may be under continuous supervision and control with staff available at all times on a ratio of 4:1, with 15-minute welfare checks when she is settled in her room;
b. BA may not leave the hospital without supervision by staff. If BA leaves the hospital unaccompanied, the supervising staff will be required to follow and contact the police;
c. Supervising staff will determine when BA can access community activities, personal items, quiet spaces and outdoor areas, based on dynamic risk assessments;
d. When travelling by car doors and windows of the care may be locked and BA shall be supervised by staff members on a ratio of 4:1:
e. Any items in BA's hospital room which may be used or adapted to be used to cause herself or others harm may be removed;
f. Use of physical intervention as a last resort and only where verbal strategies and de-escalation techniques have failed, for the shortest time possible and with minimal force. Any use of physical restraint are only permitted to be carried out by supervising staff who are restraint trained
g. Random room checks may be used;
h. Secure transport may be used in order to transport BA to the identified Residential or Secure placement.
The Court on that occasion had been satisfied that BA should remain in the hospital as a “temporary arrangement”, given ongoing concerns of BA being a risk to herself and others.
Hearing
The matter came before McKendrick J remotely over MS Teams listed for an hour in private on 3 March 2026.
McKendrick J made clear that “the situation was intolerable” and made directions that the applicant filed and served a detailed witness statement setting out interim education and the transition from the hospital setting to a placement and for the parents to set out a plan for BA returning to their home care so that the Court could consider the safety of that potential option.
At the further hearing listed by McKendrick J for two hours in person, the applicant filed a transition plan for BA to move to a residential children’s home around thirty minutes away from where her parents lived. BA and her parents both visited this new placement. A CAHMS-to-CAHMS handover took place, arrangements were made for BA to have the benefit of a private tutor, and a recommendation was made for CBT and play therapy once BA is settled and ready. Activities based on caring for animals in the local area were identified for BA to engage in.
BA’s parents supported this plan and, having met with the Guardian, BA raised that there was a lack of natural light and that she wanted to be a teenager doing teenager things like meeting with her friends. She did not want a DOLS restriction, but if there had to be one, she wished for it to be restricted to a month in duration. She was accepting of the children’s home as it would allow her parents to visit her.
The Court authorised the deprivation of BA’s liberty at the hospital strictly limited to a short period of time to allow the transition to BA’s new placement. Following the transition plan, the order only permitted the deprivation of liberty at the children’s home.
Discussion
The Court concluded that constant supervision and control, locked doors and windows, and the fact BA is not free to leave means that the "acid test" [Storck v Germany (2006) 43 EHRR 6] for confinement is met. Further, that the confinement is imputable to the State.
This would be in contravention of BA’s Right to Liberty and Security at Article 5 of the European Convention on Human Rights but for the fact that the Court found that the deprivation of liberty order was made for purpose of securing BA’s educational supervision as per Article 5.1(d) ECHR.
The Court was therefore satisfied that it was appropriate to grant leave to the applicant to invoke the High Court's Inherent jurisdiction pursuant to section 100(3) of the Children Act 1989 as without exercising the court's powers under its Inherent Jurisdiction, BA will likely come to harm by way of self-harming behaviours or the involvement in violent behaviours.
Ultimately, the Court found that the situation BA was in was “intolerable for her, first and foremost. Intolerable for her distraught parents. Intolerable for the many other children who are in state detention in inappropriate settings because of the well-known lack of appropriate facilities to treat the mental health symptoms of highly vulnerable children”.
Furthermore, the Court considered that it “is also unacceptable that a much-needed NHS bed is unavailable for want of other more appropriate provision. Open justice requirements led me to conclude a short judgment should be published”.