Pump Court Chambers

Deprivation of Liberty of Children under Local Authority Responsibility

News 9th December 2015
  1. In A Local Authority v D & Ors [2015] EWHC 3125 (Fam), Keehan J gave useful guidance in an area of law which many family practitioners may not have considered. Where a child is under the local authority’ responsibility, can that local authority authorise the placement of the child in a setting which amounts to a deprivation of its liberty?
  2. The subject child was 14 years old and living at a children’ home under an ICO. He had a moderately severe learning disability and ADHD for which he took medication. He had a statement of special educational needs and was educated at a special school. His social worker had assessed him to lack capacity to make decisions, although the nature of the assessments conducted and the type of decisions which he lacked capacity to make were not set out. While at the children’ home, the child had a behaviour plan which regulated, amongst other things: him being monitored while at the home; the degree of supervision when out of the home; the number of people required to supervise him at any time. He was reported to be happy and settled at the home and wanting to stay there.
  3. Before answering the key issue, one must understand what is a deprivation of liberty. The key authority is Cheshire West [2014] UKSC 19. Baroness Hale examined a number of European Court of Human Rights cases. The whole judgement warrants reading but a handy summary is at para 37:

‘The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras.74 and 89, confirmed in Stanev, paras.117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of a lack of valid consent; and (c) the attribution of responsibility to the state.’

  1. It was agreed between all parties before Keehan J that the subject child was subject to a deprivation of his liberty because of the behaviour plan in place for him.
  2. It is possible for parents to agree, as a proper exercise of their parental responsibility, that a child can be placed in a setting which would otherwise amount to a deprivation of the child’ liberty. In other words, parents’ consent can make such a placement not a deprivation of the child’ liberty, depending on the circumstances of each case – what may be an appropriate exercise of PR for a very young child without special needs will be different than for an adolescent child with significant learning disabilities – see for example the judgment of Re D [2015] EWHC 922 (Fam).
  3. Where, however, a child is under an ICO or care order, Keehan J’ view was that the parents’ right to consent to the deprivation of liberty of their child is strongly diluted – his view was that it is “extremely unlikely’ that a parent could consent in that situation.
  4. So, where does that leave the local authority whose plan is to place a child in circumstances which amount to a deprivation of their liberty? Keehan J discussed 2 options:
    1. a secure accommodation order under s. 25 CA 1989. This route requires the statutory test to be made out, plus an analysis whether the proposed placement is registered under the Children’ Secure Accommodation Regulations 1991. If neither is met, this cannot be a route for the LA. He also took the view that there is a punitive element about such an order which makes it unattractive where a child’ welfare requires a restrictive placement in a therapeutic setting;
    2. the inherent jurisdiction. The LA would need to overcome the provisions of s. 100(4) CA 1989.
  1. He expressly dismissed the argument that a Court may implicitly approve a deprivation of liberty by making an ICO or care order with a plan for a placement which amounts to a deprivation of liberty. It is therefore essential for the LA to apply for further orders and not rely on their ICO or care order; if they do not, the placement may be a breach of the child’ Article 5 rights, be unlawful and thereby put the LA at risk of a damages claim.
  2. On the facts of that case, Keehan J was satisfied that he should grant the LA permission to invoke the inherent jurisdiction of the Court as there was no alternative order which would achieve the result the LA required, and further, that the subject child would suffer significant harm if the inherent jurisdiction were not exercised.
  3. He gave the following “observations’ which are worth bearing in mind in any case in which there is heavy monitoring, supervision or restriction of the subject child’ movements:

“38. The issue of whether a child or young person is deprived of his or her liberty is highly fact specific. Acknowledging that fact, I set out the following observations in respect of children in need or looked after children who may be living in circumstances which amount to a deprivation of liberty. I hope the same will be useful and helpful. In so doing, I am grateful to Mr. Goodwin QC for his submissions, from which I have drawn many of the following paragraphs:

  1. Local authorities are under a duty to consider whether any children in need, or looked-after children, are, especially those in foster care or in a residential placement, subject to restrictions amounting to a deprivation of liberty.
  2. The Cheshire West criteria must be rigorously applied to the individual circumstances of each case.
  3. The comparison to be made is not with another child of the same age placed in foster care or in a residential home, but simply with another child of the same age.
  4. A deprivation of liberty will be lawful if warranted under statute; for example, under s.25 of the Children Act 1989 or the Mental Health Act 1983 or under the remand provisions of LASPO 2012 or if a child has received a custodial sentence under the PCCSA 2000.
  5. Where a child is not looked after, then an apparent deprivation of liberty may not in fact be a deprivation at all if it falls within the zone of parental responsibility exercised by his parents (see Re D ). The exercise of parental responsibility may amount to a valid consent, with the consequence that the second limb of Cheshire West is not met. In those circumstances, the court will not need to make any declaration as to the lawfulness of the child's deprivation of liberty.
  6. Where a child is a looked-after child, different considerations may apply, regardless of whether the parents consent to the deprivation of liberty.
  7. Where a child is the subject of an interim care order or a care order, it is extremely unlikely that a parent could consent to what would otherwise amount to a deprivation of liberty. In those circumstances, a local authority cannot consent to a deprivation of liberty.
  8. The local authority must first consider whether s.25 of the Children Act is applicable or appropriate in the circumstances of the individual case. This will require an analysis of (1) whether any of the regulations disapply s.25, (2) whether the intended placement is accommodation provided for the purposes of restricting liberty and, thus, secure accommodation within s.25 and (3) whether the test set out in s.25.1(a) or (b) is met.
  9. If it is not, then the s.100(4) leave hurdle is likely to be crossed on the basis that any unlawful deprivation of liberty is likely to constitute significant harm.
  10. Irrespective of the means by which the court authorises the deprivation of a child's liberty, whether under s.25 or the inherent jurisdiction, the local authority should cease to impose such deprivation as soon as (1) the s.25 criteria are not met, or (2) the reasons justifying the deprivation of liberty no longer subsist. Authorisation is permissive and not prescriptive.’
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