Profit making private providers of children’s care & breaches of Article 5

Tuesday 19 April 2022

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For anyone concerned with the human rights of children AB (A Child: human rights) 2021 EWFC B100 is an essential read. The case concerned a 12-year-old boy, AB, who was placed under interim public law orders in foster care and then care homes run by Horizons Care Ltd.  For several months, whilst awaiting a final hearing, AB had had his liberty restricted in a residential unit called Mill Cottage, in breach of his Article 5 rights.

In AB Judge Dias QC stated (at para 3):

“Between November 2020 and March 2021, AB was confined in the residential unit without lawful authority. The deprivation [of] this child's liberty was unlawful. That is the crux of the problem in this case. Regrettably, it is not the only one.”

The judge had a number of concerns before him about AB’s placement; that he was fighting with other young people in his placement, engaging in challenging behaviour towards other young people, allegations AB made that he was being bullied, and concern that AB was accessing adult images on the internet.

During the course of the public law proceedings, AB’s social worker had contacted Ofsted about the concerns in relation to the placement, which in turn conducted a monitoring inspection of the care home. Ofsted’s report was “scathing”, the judge said, and the registration of the residential unit was suspended immediately. Judge Dias QC stated:

"Ofsted, as is their legal duty, provided a detailed list of statutory requirements for necessary remedial work prior to any reopening. The conditions that AB and the other children were living in shocked even senior managers of the company that operates the home when they visited during the Ofsted inspection. AB was living in a neglected, chaotic and unsafe environment" (para 8).

The children, including AB, were rehoused. The watchdog specified eleven statutory requirements for necessary remedial work prior to any reopening. On 24 March the local authority filed a second DoL application. The judge granted the application but found that, “Either a deprivation of liberty is lawful or it is not. Between November 2020 and early March 2021, it was not."  He went on, citing MacDonald J in LB Lambeth v L (Unlawful Placement) [2020] EWHC 3383 (Fam):

"Local authorities are under a duty to consider whether children who are looked after are subject to restrictions amounting to a deprivation of liberty.  A local authority will plainly leave itself open to liability in damages, in some cases considerable damages, under the Human Rights Act 1998 if it unlawfully deprives a child of his or her liberty by placing a child in a placement without, where necessary, first applying for an order authorising the deprivation of the child's liberty."

Horizons Care, where AB endured breaches of his human rights at the age of 12, are one of the larger private care home providers.  They are a business with a keen eye on their profit margins.  

Horizons Care responded to the interim report by the CMA and responded that they may make a profit due to ‘lower running costs’. [1] The case of AB raises the question about where the lower running costs are most keenly felt and at what price for children’s human rights.

The UK has an increasing and well-documented problem; vulnerable children are being removed from their families and nowhere to place them. Enter the business of making a profit from society's most vulnerable children.  The UK’s Competition and Markets Authority have now provided their final report on the problematic market in children’s homes finding that: "the largest private providers of placements are making materially higher profits, and charging materially higher prices than we would expect if this market were functioning effectively” [2].

The case of AB and what he endured raises a number of searing questions about how the most vulnerable children in the UK are treated and the profit-making business of caring for them.

Rebekah Wilson, of the Garden Court Chambers Famly Team, appeared for the Respondent father, instructed by Saleha Bibi of Sternberg Reed.

[1Submission by Horizon Care and Education Limited in relation to the interim report on the CMA's children's social care study 
[2] Children’s social care market study, The Competition and Markets Authority, 2022

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