No Key in the Lock: Children Deprived of Their Liberty in Residential Homes

A deprivation of liberty is not the same thing as a restriction on liberty, and the difference matters enormously in law. Every children's home places limits on a young person's freedom — curfews, supervision arrangements, conditions attached to contact and to movement. These are restrictions, and they are permissible within the existing framework of looked-after children's law. A deprivation of liberty is something else: a continuous physical or environmental confinement that, under Article 5 of the European Convention on Human Rights, requires specific legal authorisation. The state cannot confine a person — even a child, even in their own interests — without a legal basis for that confinement. When a residential home is operating in a way that amounts to a deprivation of liberty — where a young person cannot leave, where physical intervention is used routinely to prevent absconding, where the placement functions, in practical terms, as a form of containment — the law requires that a court authorise this. The number of such authorisations sought from the High Court has risen from 103 in 2017/18 to over 1,400 in 2025. That tenfold increase in under a decade is not primarily a story about more children needing containment. It is a story about a system under structural strain.

The formal route to placing a child in a setting that restricts their liberty has, for decades, been the secure accommodation order under Section 25 of the Children Act 1989. A Section 25 order is made by the family court and authorises a child's placement in a secure children's home — a registered, purpose-built setting with physical security, specialist staffing, and its own quality standards. There are approximately 250 secure places in England. For most of the history of the secure estate, this scarcity was managed. What has changed is the scale of need. The number of young people whose behaviour, risk profile, or vulnerability is assessed as requiring containment has outstripped the availability of secure placements — sometimes dramatically. When a secure place cannot be found, local authorities have increasingly turned to an alternative route: applying to the High Court, under its inherent jurisdiction, for authorisation to deprive a child of their liberty in a non-secure setting. An ordinary registered children's home, not built or staffed for secure care, becomes the setting for a placement that is legally, if not physically, equivalent to detention. Deprivation of liberty applications to the High Court have outpaced secure accommodation applications by a ratio of more than twenty to one in some quarters. That is not a proportional response to need. It is a system finding workarounds to its own capacity failures.

The Children's Wellbeing and Schools Act acknowledged the problem and created a new statutory response to part of it: a category of registered placement that is authorised to house children subject to a deprivation of liberty order, short of the full secure accommodation designation. The intention is to provide a clearer legal framework for what has been happening informally — placements that are functionally restrictive without being formally secure — and to extend oversight and registration requirements to settings that have been operating in a legally uncertain space. Whether the new framework will reduce the pressure on the High Court, or whether it will simply formalise the current workarounds without addressing the underlying shortage of places, remains genuinely uncertain. What it has done is make explicit what the sector has known for some time: that significant numbers of children in registered children's homes are living in conditions that constitute, in law, a deprivation of their liberty, and that the legal and regulatory framework has struggled to keep pace with that reality.

For residential homes, a DoL authorisation changes the terms of the placement in ways that demand clear thinking about practice. The young person in the home is not a detainee in the way a prisoner is — there is no uniform, no cell, no formal enforcement apparatus beyond what the home's own staff can provide. But they are legally confined, and the home's obligation to maintain that confinement while also maintaining a therapeutic relationship is a genuine tension, not a technical one. Staff in homes carrying DoL placements need to understand what the authorisation actually permits and what it does not. They need to be clear, in practice, about how they prevent a young person from leaving — what restraint is authorised, in what circumstances, and by whom — and about how they document and review incidents in a way that supports the court's oversight function. They also need to be people who can hold the complexity of being, simultaneously, a carer and a legal custodian. That is not a role most residential workers signed up for explicitly, and the training and supervision infrastructure to support it has not consistently developed alongside the growth in DoL applications.

The young person at the centre of a DoL placement has rights that the authorisation does not extinguish. They have the right to legal representation — the Official Solicitor may be appointed to represent children in DoL proceedings, though the sufficiency of that representation in practice is a matter of ongoing concern. They have the right to know what has been decided about them and why, in terms they can understand. They have the right to have their views communicated to the court. In practice, many young people subject to DoL orders are not meaningfully informed about their legal status, the basis for the court's decision, or the mechanism by which it can be reviewed or challenged. The residential home is often the setting in which a young person lives most of their daily life and is therefore the setting in which their understanding of their situation — and their ability to exercise their rights within it — is most directly shaped. Staff who understand the legal framework, who can explain it honestly, and who actively support the young person in accessing advocacy and representation, are providing something that matters beyond the daily care task. They are maintaining the conditions in which a legally confined child can still exercise agency.

The government's announcement of £53 million to create two hundred new council-run placements for children in this category is a recognition that the current situation is not sustainable. Two hundred places will not resolve the underlying shortage, but the investment signals something important about where policy is moving: toward a model in which the state has a more direct role in providing for the children whose needs the market has not met. The deeper question, which the investment does not answer, is how we reduce the number of children assessed as needing detention in the first place. Some of those assessments will be accurate; some will reflect the absence of the intensive, high-quality, non-secure therapeutic provision that might have changed the trajectory earlier. A child who has spent three years in a succession of inadequate placements, whose trauma has been managed rather than addressed, whose risk has been monitored rather than reduced, may arrive at an assessment of needing containment not because containment was always inevitable but because earlier intervention failed. The DoL numbers are the end of a pipeline. Understanding what feeds that pipeline — and where residential care, at its best, can interrupt it — is the work the sector now needs to do.