Children’s Wellbeing and Schools Bill

Baroness Berridge Excerpts

Tuesday 17th June 2025 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, Amendment 131, in my name, appears in this group. I will not quite say that it is a pleasure to follow the contribution of the noble Baroness, Lady Barran, but it was a terribly important contribution, and I can only very much agree with what she said. The issues that she has outlined—about children as young as seven, with two-thirds continuing still at six months—are hugely disturbing.

My amendment seeks to address a particular issue concerning children subject to deprivation of liberty orders and children in care in general. As I said to the Ministers when they very kindly had a briefing on the Bill, this arises from a campaign that I encountered in 2023, called Hope Instead of Handcuffs. This campaign came from a small group of people—a single operator of the provision of secure transport for children—who were calling for a ban on the automatic use of handcuffs. Yes, I did say the automatic use of handcuffs, which some privatised providers of secure transport were using on children who were subject to deprivation of liberty orders—or who, as it was described, were on the edges of care. They were being put in handcuffs to be transported. These are not children who have been accused of any crime; these are simply children—very vulnerable children, obviously—who have been subjected to something that I think any of us would find traumatic and disturbing.

This reflects testimony that was given in 2021 to the inquiry of the Joint Committee on Human Rights on protecting rights in care settings. Serenity Welfare testified that, as I have just said, many providers of secure transportation services for children who were on the edge of care were using handcuffs as standard. I quote from its testimony:

“The practice is unregulated and unmonitored, as there is no obligation on these providers to report any instances of handcuffing to the appropriate authority”.


As a result of that campaign in 2023, I and a number of other Members of both Houses wrote to the Government inquiring what was happening. The response we got was, “We will look into it”. To the best of my knowledge, none of this has progressed since then, so I particularly wanted to put down this probing amendment to draw attention to the issue.

I have not addressed just transport, because I want to know what is happening in other settings for these children as well, which is why I have included them in the amendment. This is perhaps a much more limited issue than the noble Baroness, Lady Barran, was outlining, but I look forward to hearing from the Minister that the Government are planning to do something about it if, as I have no reason to doubt, it is still continuing, and to stop it.

[Baroness Berridge (Con)]

My Lords, Amendment 126, in my name, is in this group. This amendment relates to a discreet issue for children who are under a High Court deprivation of liberty order but who are not also looked-after children under the Children Act. Approximately 96% of those children under a High Court deprivation of liberty order are also looked-after children under the Children Act, but then they end up at the High Court, as there is a shortage of Section 25 secure accommodation. Only in Section 25 accommodation under the Children Act can a looked-after child be restricted of their liberty—that currently means a secure children’s home—so they are also put under a High Court DoL so that the local authority can deprive them of their liberty in non-Section-25-type accommodation. It seems that by the move to the phrasing “relevant accommodation” the Bill will regularise in law their situation, which is that 96% of these young people are currently under that inherent jurisdiction deprivation of liberty order. However, there are currently 4% of children under a High Court deprivation of liberty order who are not also looked-after children under the Children Act.

I want to thank the President of the Family Division, Sir Andrew McFarlane. I believe that it was his work that brought in the Nuffield Family Justice Observatory, when High Court DoLS—as we would call them—began to be used as a jurisdiction. It is due only to that work that we know that, within that group, we have this little group—the 4%—who are not also looked-after children. Even an amended Section 25 of the Children Act refers only to looked-after children having their liberty being restricted in what would now be known as “relevant accommodation”. They would still be left under the High Court jurisdiction, with fewer safeguards. The whole purpose of Clause 11 is to bring from the inherent jurisdiction these children under a statutory system of protection, safeguards and reviews.

This 4% of around 1,280 children last year are often children coming out of the mental health estate. They have been taken into hospital for their own protection and for treatment; then they are discharged but, for health reasons, their home is no longer suitable. In my view, they are not going to pass the threshold test under the Children Act 1989 to be a looked-after child, because the threshold test—philosophically and in practice—is about harm by the care or neglect of the adult who should be caring for them or the fact of their being out of control. Neither of those circumstances seem in most cases to apply to a young person who has gone into the mental health estate and then been discharged.

While I recognise the imperfections of the current drafting of Amendment 126—for instance, it might trigger other provisions of the Children Act if we deem these children to be looked after-children—I chose that mechanism to try to bring them under the safeguards that we will have for children under Section 25 who are looked-after children, and not leave them still to be under the inherent jurisdiction of the High Court. I hope that that serves to be a mechanism for the Minister to explain what the situation is for that small group of children.

I imagine it was envisaged by Sir Andrew McFarlane that he would get the data through the Nuffield work, so that we would come to Parliament, legislate and take this into statute law, out of the inherent jurisdiction. It seems to me, from Amendment 126, that unless we do something for this small group of children, he is going to have to continue needing Nuffield, because there will be a need for this type of deprivation of liberty order under the inherent jurisdiction for the group of children I have just outlined.

[Baroness Butler-Sloss (CB)]

My Lords, what the noble Baroness, Lady Berridge, has just said is entirely sensible, and, if I may, I add my voice to it.

I did not know about this group of children. It seems wrong in principle that they should not be treated in exactly the same way as all other children in this particularly vulnerable group. As the noble Baroness, Lady Barran, pointed out, they are quite obviously the most vulnerable of all the children. I declare my interest as patron of the Atkinson unit in Exeter, which is secure accommodation.

What I am really standing up for on this is not only to understand and support in principle what the noble Baroness, Lady Barran, is saying but to express some concerns. I will just take, as an example, Amendment 120. If this child under the age of 13—and that is a very sad circumstance to have a child under 13—is under an order of the court, the Secretary of State would not be able to deal with it further than suggesting that the court order should be reversed. It is important that, when looking at these amendments, one has to bear in mind that it appears that deprivation of liberty may be able to be made without the introduction of the court. In so far as the court is concerned, I remind the Committee, as a former lawyer and judge, that neither the Home Office, the Department for Education nor any other government department can actually change the law of England other than through the parliamentary process. I have no doubt at all that the Minister knows that perfectly well, but it seems to me we have to be a little careful about the extent of the suggested use of these amendments.

I entirely understand what is intended, and it is entirely laudable, but we just need to be very careful as regards in what circumstances and whether there will be a court order. My recollection is that, in the past, Section 25 orders were also made in the family proceedings court. Not a word has been said about that now, and it may be that that does not happen any longer, but certainly there continue to be orders under the inherent jurisdiction, so I just make that warning to your Lordships.

--- Later in debate ---

As the noble Baroness said, Nuffield research found that 96.6% of children on a deprivation of liberty order under the inherent jurisdiction of the High Court were already in care at the time of the application. Where the child is not in care, they may have significant disabilities that mean a deprivation of liberty order is needed to keep them safe. In those cases, seeking to consider these children looked after may not be needed or appropriate. Furthermore, the Children Act 1989 is clear that the court’s inherent jurisdiction should not be exercised if the same result can be achieved through existing statutory frameworks. Deeming a child looked after due to a deprivation of liberty order being made under the inherent jurisdiction would bypass existing legal frameworks that enable a child to become looked after. However, I am not wholly sure that I have fully addressed the detail of the points made by the noble Baroness in her contribution, and I will therefore look again at what she said and undertake to write to her.

[Baroness Berridge (Con)]

I thank the Minister. Can she simply confirm in the letter that the position may be that we are left with a residual group of children who will still need the inherent jurisdiction? It might be that the legislation just does not reach quite far enough at the moment.

[Baroness Smith of Malvern (Lab)]

I will clarify that in the letter.

On Amendment 131 tabled by the noble Baroness, Lady Bennett, on the important matter of the use of restraint on children in care and subject to deprivation of liberty orders, it is vital that children are safe and that restraint is used only where appropriate, including when they are moving between settings and services. We take these concerns very seriously. We will consider guidance on restraint in due course.

However, the question about children being handcuffed remains, and I will endeavour to get more detail about that and to come back to the noble Baroness. Providers, in conjunction with placing authorities, are under an obligation to use the minimum appropriate restriction to keep a child safe.