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Can we stop a child leaving a care home?
One of the most common questions we get asked on training courses is whether staff are legally entitled to stop a child leaving a care home where they believe that the child is likely to be exposed to the risk of significant harm.
For example, a 15-year-old girl is about to leave the home and outside in a car is a man who is known to the authorities for dealing drugs and running prostitution rackets. The 15-year-old girl has a history or absconding and prostituting herself and the staff honestly believe that if they allow the girl to leave she will end up either taking drugs or being prostituted by the man in the car. What should they do? Can the staff lock a door temporarily to prevent her from going whilst awaiting the arrival of other staff and / or the police, and can they, if they believe it is necessary to do so to prevent the child being exposed to the risk of harm, use reasonable force to physically restrain her to prevent her from leaving the home?
What is interesting when we pose the above question to staff and management is that most staff and management believe that they are not allowed to stop the child from leaving. This is even promoted by some inspectors of various regulatory agencies.
However, if we delve into the legislation we can see possibly where some of the confusion may arise. For example the Children's Act states the following:
".it is important to recognise that any practice or measure that prevents a child from leaving a room or building of his own free will may be deemed by the Court to constitute a "restriction of liberty".
For example, while it is clear that the locking of a child in a room, or part of a building, to prevent him leaving voluntarily is caught by the statutory definition, other practices which place restrictions on freedom of mobility (for example, creating a human barrier) are not so clear cut. In the latter case, the views of the authority's legal department should be sought in the first instance as to the legality of the practice or measure. The views of the Social Services' Directorate might also be sought".
Interpretation of this section of the Children Act 1989 caused immense confusion for many in residential child care. It was interpreted so literally by some, that agencies and staff felt powerless or concerned about preventing children from leaving children's homes, sometimes in the most worrying circumstances, and a report by carried out by Bridge Child Care Development Service highlighted this fact further.
The death of a girl in the care of Gloucester Social Services, at the hands of Frederick and Rosemary West, revealed the true extent of the confusion that prevailed in this area. Her file did not reveal any significant attempts to try and find out what had happened to her when she went "missing" and failed to return. A review of case records apparently indicated that at least fifty young people were missing from care homes in Gloucester and their records merely indicated that their location was unknown. (The Bridge Child Care Development Services 1996).
Aware of the confusion created by misinterpretation of the Children's Act Sir Herbert Laming (now Lord Laming), the then Chief Inspector of Social Services Inspectorate, decided to address the situation via a letter of clarification and the dissemination of a document entitled LAC(93)13 in 1997.
In LAC(93)13 Sir Herbert Laming makes it clear what staff can and must do:
9. "The guidance in LAC(93) is clear that staff can and must intervene immediately to try to prevent young people leaving the children's home when there are grounds for believing that they are putting themselves or others at risk or are likely seriously to damage property."
He then goes on to say that:
10. "Existing guidance [LAC(93)13 section 5] is clear that in certain circumstances physical restraint can and should be used. It is also reasonable to bolt a door temporarily to restrict a young persons' mobility, or in order to win some time to call for help from other staff."
Unfortunately, this extremely useful document by Sir Herbert Laming, sent to all local authority departments, does not seem to have filtered through to many staff working in this area. The experience of my colleagues and myself shows that once this document is brought to the attention of those working in the field it is a valued document, providing useful and much needed interpretation and guidance.
What about the use of physical force? - Read on - next page - |
