Deprivations of liberty and young offenders

Jake (a child), Re [2025] EWHC 2230 (Fam)

In the High Court before Recorder Jack

Factual background

This case concerned an application by a Local Authority for a DOLS order to be continued in respect of Jake, aged 16.

The Deprivation of Liberty sought included:

1. Jake will subject to a 1:1 ratio at all times both within and outside his placement;
2. Jake’s bedroom is monitored by alarms which will alert staff if Jake has left his bedroom at night and to ensure that he does not enter another young person’s room;
3. There are window restrictors on the windows of the home

The factual background to the application was as follows. On 4th July 2023, Jake was sentenced to two and a half years custody following a conviction for three serious sexual offences against a 14-year-old girl. Jake contended that the sexual relations were consensual however this was not accepted by the Youth Court.

It was noted in the pre-sentence report that Jake himself had been a victim of sexual assault when he was aged 6 at his foster placement.

There were thirteen conditions of the licence under which Jake was released which, of particular significance, included:

“(x) Confine yourself to an address approved by your supervising officer between the hours of 21:00 and 07:00 daily unless otherwise authorised by your supervising officer.

(xi) To comply with any requirements specified by your supervising officer for the purpose of ensuring that you address your sexual offending;

(xii) To comply with any requirements specified by your supervising officer to register and engage with an education provider;

(xiii) To comply with any requirements specified by your supervising officer to register and engage with housing/your support networks.

The Local Authority’s case for a DOLs order to be made was based on the following:

• ‘Jake scored in the red category for sexual behaviours, developmental influences, and self-regulation, indicating a need for urgent intervention. He scored amber in the remaining domains. These results suggest that Jake requires comprehensive support across all five domains to address both the trauma he has experienced and the risk of continued harmful behaviour.
• ‘Jake has been assessed as posing a high risk of re-offending, serious harm to others, and risk to his own safety and wellbeing.’
• The Local Authority noted that whilst ‘notable progress’ had been made by Jake in the detention centre, ‘this progress had occurred within a highly structured and controlled environment’, an no therapeutic work had yet taken place in order to address his offending behaviour.

The Local Authority submitted that whilst a DOLs order is a draconian measure, ‘Jake’s care regime could become unmanageable without the DOLs authorisation’, and a step down plan was needed.

The Guardian’s position

The Guardian’s position was that a DOLS order was not appropriate and was acting as an ‘inappropriately used’ ‘extra added layer of incarceration’.

The benefit that was posed to Jake through the DOLs is the fact that it gave him access to therapeutic interventions, however the Guardian’s position was that this could have been delivered by the Youth Offending Service as part of Jake’s licence in any event.

The Guardian showed ‘grave concern’ regarding the use of the inherent jurisdiction to authority a deprivation of liberty where its deployment was being utilised to ‘fill a gap in the child care system caused by inadequate resources, with the Court being asked to ‘plug the systematic gaps’’.

Legal principles

The Court had regard to the purpose of sentencing child offenders as is laid out in Section 58 of the Sentencing Act 2020:

Nothing in this Code affects the duties of the court—

(a) to have regard to the principal aim of the youth justice system (which is to prevent offending (or re-offending) by persons aged under 18: see section 37 of the Crime and Disorder Act 1998 );

(b) under section 44 of the Children and Young Persons Act 1933 (to have regard to welfare and in certain cases to take steps in relation to surroundings and provision of education etc).”

This is supported by the Sentencing Council’s guidelines Sentencing Children and Young People:

4.1 In determining the sentence, the key elements to consider are:

• the principal aim of the youth justice system (to prevent re-offending by children and young people);
• the welfare of the child or young person;
• the age of the child or young person (chronological, developmental and emotional);
• the seriousness of the offence;
• the likelihood of further offences being committed; and
• the extent of harm likely to result from those further offences

The Court noted the test for exercising its inherent jurisdiction, as set out in section 1(1) of the Children Act 1989:

• “the child’s welfare shall be the court’s paramount consideration.”

Finally, in order for the Court to exercise its inherent jurisdiction, it must act within the limitations of section 100 of the Children Act 1989:

“(3) No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4) The court may only grant leave if it is satisfied that—

(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies;

and

(b) there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

(5) This subsection applies to any order—

(a) made otherwise than in the exercise of the court’s inherent jurisdiction;

And

(b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).”

Judgment

The Judge noted how the Local Authority’s ‘key concern’ was that ‘should Jake not engage with [the safety plan], there would be no legal mechanism or authority in which to prevent Jake from absconding or placing himself at risk.’ However, the court noted at para 23 that:

‘It is true that a DOLs order is merely permissive: it allows the local authority to do something which, in the absence of the permission given by the DOLs order, they could not do. If Jake breaches the terms of the DOLs order, he is — not even theoretically — liable to contempt of court or any other Court-imposed sanction for beach of the DOLs order. The only consequence of breach is that the local authority can use limited physical force to ensure Jake’s compliance. It is in order to avoid the need to use physical force to prevent absconding, that DOLs orders regularly include provisions for locking doors and affixing restrictors to windows.’

Whereas, for breach of licence conditions, ‘the consequences are draconian’, in that he can be reincarcerated until 29th October 2026. Likewise with any abscondment, the consequence could potentially be imprisonment and rescission of his licence. This is therefore a much more severe consequence than having restrictors on Jake’s bedroom windows etc.

The Judge concluded that the Local Authority had failed to show reasonable cause to believe, that should no DOLs order be granted, Jake is likely to suffer significant harm, as required by section 100(4)(b) Children Act 1989. This was on the basis that the management by the Youth Offending Team is sufficient to manage Jake and the risk of significant harm for three reasons:

1. The submission that there is no sanction for abscondment is wrong and thus the idea that there is no alternative to a DOLs is misplaced.
2. The licence conditions themselves permit a ‘step down’ as desired by the Local Authority and there is no basis for asserting that ‘the YOT are not cognisant Jake’s needs in this regard’.
3. YOT and Youth Justice Services hold the primary responsibility for Jake and the local authority is only secondary in Jake’s rehabilitation. ‘It is not for the High Court sitting in its parens patriae jurisdiction to micro-manage what a body

such as the YOT, which operates in a specialist area of the criminal justice system for young offenders, might consider the best course for managing a particular young offender released into the community on licence’.

The application to extend the DOLs order was on this basis, refused.

Caitlin Smithey is a 2025 pupil barrister at Spire Barristers.