Deprivation of Liberty Orders and Unregistered Placements: A Quick Risk Briefing

Local authorities are applying to the High Court in growing numbers to authorise the deprivation of liberty (DoL) for children who cannot be kept safe in a registered placement. Applications to the National DoL Court have increased by 462% over four years, and a continuing shortage of registered children's homes across England and Wales means that many children subject to a liberty order are living in accommodation that sits outside the usual regulatory framework. For providers and local authorities, understanding the deprivation of liberty children may face in an unregistered setting, and how this interacts with registration requirements, is central to managing legal risk.

What Does a Deprivation of Liberty Order Involve?

A Deprivation of Liberty Order authorises restrictions on a child's freedom, such as constant supervision, restricted contact or a locked or staffed environment, where this is judged necessary to protect their safety. For children under 16, a DoL order is usually made under the High Court's inherent jurisdiction. For older children, a secure accommodation order under the Children Act 1989 may be the appropriate route, depending on the child's circumstances.

Deprivation of Liberty Safeguards, the framework used to authorise restrictions on adults under the Mental Capacity Act 2005, do not apply to children. That adult framework sets six qualifying requirements, covering age, mental health, mental capacity, best interests, eligibility and the absence of a valid refusal, and is limited to people aged 18 and over. Because children fall outside this scheme, a separate legal route is required whenever a child's liberty needs to be restricted.

Any order restricting a child's liberty must be lawful, necessary and proportionate, and consistent with the European Convention on Human Rights and the principles set out in the UN Convention on the Rights of the Child, which treats deprivation of liberty for children as a measure of last resort.

Why Are Applications to the Court Rising?

The rise in applications reflects a wider placement crisis rather than a change in the law. Local authorities have a duty to safeguard children and provide accommodation where it is needed, but a shortage of registered care settings means a suitable placement is not always available at the point when a child requires one. Where a child's needs, whether linked to autism, a mental health condition or other complex circumstances, cannot be met safely without restricting their liberty, and no registered accommodation exists, a local authority may need to apply for leave to use the High Court's inherent jurisdiction.

Judges hearing these applications must weigh the child's welfare against the restrictions proposed in each order. The volume of cases reaching the National DoL Court illustrates the pressure facing local authorities and children's care providers.

The Registration Risk for Providers

A DoL order authorising the deprivation of a child's liberty does not, on its own, make a placement lawful from a registration standpoint. Children's homes in England must be registered with Ofsted, and equivalent care settings in Wales must register with the Care Inspectorate Wales. Operating an unregistered children's home is a criminal offence, and children under 16 cannot lawfully be placed in a setting that should be registered but is not, regardless of any liberty order in place.

Ofsted has increased its scrutiny of unregulated placements for children in recent years, including settings that fall outside the traditional definition of a children's home. Providers accommodating children subject to a Deprivation of Liberty Order should confirm their registration status before accepting a placement, since a court order will not act as a defence to a registration offence.

The Evidence Local Authorities Need

Applications to authorise a deprivation of liberty, and any related decision to move a child to a new placement, need to be supported by clear evidence. Courts will typically expect a local authority to provide:

• A welfare assessment explaining why the restrictions proposed are necessary and proportionate to the risk of harm.
• Evidence of the search for a registered placement, including why suitable options for the child were unavailable.
• The current legal status of the child, such as a care order or interim care order, and the position of anyone with parental responsibility.
• A safeguarding and support plan setting out how the placement will meet the child's welfare, education and contact needs.
• Details of the specific restrictions proposed, including any use of restraint, and how these will be reviewed over time.

Judges have been clear that this evidence needs to be current and specific to the child concerned, rather than a general account of placement shortages affecting children across the area.

What This Means in Practice

For providers, the priority is to confirm registration status and to keep documentation that demonstrates safeguarding standards are being met for every child in their care, even where a placement has arisen quickly in response to an urgent local authority request. For local authorities, obtaining a Deprivation of Liberty Order does not remove the ongoing responsibility to continue seeking a registered placement and to keep each child's circumstances under review. For professionals across both sectors, maintaining detailed records of consent, decision-making and the reasoning behind each restriction on a child's liberty will support a stronger position if a placement is later scrutinised by Ofsted or the court.