SITTING IN NEWCASTLE-UPON-TYNE
B e f o r e :
| NORTHUMBERLAND COUNTY COUNCIL
|- and -
(By her Children's Guardian)
Re RD (Deprivation or Restriction of Liberty)
Mr. Kyle Patterson (from Yarwood & Stubley) for the Mother
Mr. Geoff Hunter (instructed by Lawson & Thompson) for the Father
Mr. Simon Wilkinson (instructed by Caris Robson) for the Children's Guardian
Hearing dates: 25 June 2018
Crown Copyright ©
The Honourable Mr Justice Cobb :
RD – personality and characteristics
"[RD] has settled well into her current placement which has provided her with the stability which she requires at this time. [RD] is accessing education, is receiving safe and consistent care and has started to form relationships with key staff and is receiving therapeutic support".
"She understands the reasons for the decisions made and there is an element of her that agrees with this. She does have moments of wanting to go home, which is perfectly natural, however on the whole it is clear that she understands that her needs at the moment are best met in the current placement".
Lennox House and RD's regime
i) RD is given a wake-up alarm call each morning, and then is left to her own devices to dress/wash and prepare for the day;
ii) She has her own room; there is a lock on the door which she can use to lock herself in, or to lock when she leaves for school (or otherwise) so that her belongings are safe; the staff have a master key; I have the impression that the lock is for RD's benefit not the staff's. RD is never locked in her room by the staff, nor are internal doors locked to manage her (or others') behaviour;
iii) RD helps around meal times "which are similar to many households" (per social worker) and she can choose to have free time after her supper with her peers and staff;
iv) RD can move around Lennox House as she chooses; there are generally staff around the communal areas to support the young people; it is said that the staff do not supervise the young people or place them "under surveillance";
v) In her leisure time, RD has the freedom to watch television in a communal area; she can have time in her room when she wishes to be alone;
vi) RD enjoys attending a boxing club; she is taken there (with another young person from Lennox House) by a member of staff;
vii) RD enjoys shopping and is taken into town by a member of staff who remains with her in town; she enjoys spending time with an animal therapist and enjoys horse riding;
viii) RD can go out into the grounds of Lennox House alone, but her visits outside the building are monitored by a member of staff watching (generally from within the house); if RD goes outside into the grounds in a group, a member of staff accompanies them to monitor/supervise;
ix) When RD was more settled, she was trusted to make short excursions in daylight hours from Lennox House alone to a local shop in the village; this opportunity has been denied her lately given her recent abscondences;
x) RD travels the hour to school by car or minibus with the other young people from Lennox House, accompanied by a member of staff. The staff member remains at the school during the hours in which RD is receiving her education, in case there are behavioural issues which require resolution; the member of staff is not generally in the classroom with her;
xi) RD enjoys fortnightly visits from her family; these visits often take place in the presence of staff, for both supervision and support – there are practical reasons for staff involvement: transport / unfamiliarity of the locality to the family. The family say that they welcome the staff on the visits, and have indicated that they would like this arrangement to remain in place until they feel more familiar with contact taking place in the community, which is unfamiliar to them;
xii) RD enjoys and seeks out opportunities for adult 1:1 time with a staff member; RD will often try to isolate a member of staff out to obtain this sole attention;
xiii) RD currently does not have her own mobile telephone (I believe a choice of her parents taken with her), but she can access the house phone at any time and make calls, which are not supervised; she does indeed call her parents most days, and calls her social worker when she feels the need to do so; there is no restriction (so I understand) on RD having a mobile phone;
xiv) Internet is available in the unit, but it is regulated by a safety feature which blocks social media and inappropriate sites; RD has access to an iPad on site; iPad use is not supervised; search histories are checked randomly.
i) In relation to 'supervision and control', different considerations would be likely to apply to a 12-year old (there is one 12-year old at Lennox House) than apply to a 14/15-year old (four residents) or 17-year old (one resident);
ii) It may be (I know not) that for each other resident there are no statutory orders in place which yield parental responsibility to the State (as there is for RD), and that there are valid consents to placement (Storck (ii): see  below).
Legal Principles and their relevance to RD
"States Parties shall ensure that:
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. … The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall … have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances." (emphasis by italics added).
"Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one's disposition to exploit one's freedom. Nor is it diminished by one's lack of capacity." (Lord Kerr ).
"… in proclaiming the "right to liberty", paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. … the paragraph is not concerned with mere restrictions on liberty of movement…
In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.
"The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends".
i) The objective element of a person's confinement to a certain limited place for a not negligible length of time;
ii) A lack of valid subjective consent to the confinement in question
iii) Confinement imputable to the state.
""Where a child is in the care of a local authority and subject to an interim care, or a care, order, may the local authority in the exercise of its statutory parental responsibility (see s.33(3)(a) of the Children Act 1989 ) consent to what would otherwise amount to a deprivation of liberty? The answer, in my judgment, is an emphatic "no". In taking a child into care and instituting care proceedings, the local authority is acting as an organ of the state. To permit a local authority in such circumstances to consent to the deprivation of liberty of a child would (1) breach Article 5 of the Convention, which provides "no one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law", (2) would not afford the "proper safeguards which will secure the legal justifications for the constraints under which they are made out", and (3) would not meet the need for a periodic independent check on whether the arrangements made for them are in their best interests (per Lady Hale in Cheshire West at paragraphs 56 and 57)" at  (emphasis by italics added).
"[T]he realities of the modern world, driven in significant part because the school-leaving age is now sixteen and by consequential changes in the employment patterns of young people, mean that the typical child who is not yet sixteen years old is not economically active and lives – in reality has no choice but to live – at home. So, the typical child of fifteen is, in the sense in which the expression is used in the case-law, not free to leave the place where they live. If the fifteen-year old child runs away, wanting to live on their own, they will probably not get social housing and, if not taken into care, are likely to be returned home to live either with the parents or with other relatives" (emphasis by italics added)
i) "It does not matter whether the object is to protect, treat or care in some way for the person taken into confinement" ();
ii) "We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty" (); [this is potentially important in RD's case – as the rural nature of the property, and its therapeutic character should not distract me from an objective evaluation of whether liberty is deprived; I return to this below];
iii) "What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities" ();
iv) "Thus, you compare the situation of the child or P with the ordinary lives which young people of their ages might live at home with their families. This seems both sensible and humane." ();
v) "the person's compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant" ();
vi) "the distinction between deprivation and restriction is matter of "degree or intensity" (: see Guzzardi above)… "In the end, it is the constraints that matter" ().
vii) "The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them." ();
Picking up the comment above (at (vi)), in Re K (A Child) (Secure Accommodation Order: Right to Liberty)  Fam 377 Judge LJ identified restrictions on liberty of movement, which fell short of deprivation of liberty (at [99-101]) as follows:"…the way in which parents restrict the movements of their children from time to time by, for example, putting young children into bed when they would rather be up, or "grounding" teenagers when they would prefer to be partying with their friends, or sending children to boarding schools, entrusting the schools with authority to restrict their movements … "grounding" a teenager, or ensuring that a group of teenagers at a boarding school are all back within school bounds by a certain time each evening …"
"At what point in the child's development, and by reference to what criteria, does one determine whether and when a state of affairs satisfying the "acid test" in Cheshire West which has hitherto not involved a "confinement" for the purposes of Storck component (a), and where Article 5 has accordingly not been engaged, becomes a "confinement" for that purpose, therefore engaging Article 5 (unless, that is, a valid consent has been given by someone exercising parental responsibility)?" 
Sir James Munby P answers the question in part by referring (at (ii) op. cit.) to the fact that:
"… children nowadays tend to live more regulated and controlled lives than children of the same age would have been used to a generation or two back. The ubiquity of the motor vehicle in modern Britain, accompanied by changes in social attitudes as to what is or is not 'responsible parenting', mean that the street is no longer as safe (or seen as being as safe) an environment as it once was. It is no longer as safe (or seen as being as safe) as it once was for children to play in the street, to be allowed to roam or even to go to and from school under their own steam".
And that (referring back to Judge LJ in Re K) ((iii) op. cit.):
"… many aspects of the normal exercise of parental responsibility that interfere with a child's freedom of movement do not involve a deprivation of liberty engaging Article 5".
Finally adding at  (op. cit.):
"whether a state of affairs which satisfies the "acid test" amounts to a "confinement" for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability".
As Lord Kerr said in Cheshire West "All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances." .
Analysis and conclusion
Note 2 I make the important point here that the presence or absence of a lock on the door is not determinative of the issue: see Ashingdane v United Kingdom ( A/93): (1985) 7 EHRR 528 at : a compulsory patient is deprived of his liberty in the hospital where he is detained, irrespective of the openness or otherwise of the conditions there. [Back] Note 8 This was the language of Storck see : “She had been under continuous supervision and control of the clinic personnel and had not been free to leave the clinic during her entire stay there of some 20 months”, deriving essentially from the decision of the HL v United Kingdom (2004) 40 EHRR 761, at  [Back] Note 9 See Re A-F  EWHC 138 (Fam) at , repeating comments made in JE v DE  EWHC 3459 (Fam) at , which had been cited with approval in Re D (A Child)  EWCA Civ 1695,  [Back]
Note 2 I make the important point here that the presence or absence of a lock on the door is not determinative of the issue: see Ashingdane v United Kingdom ( A/93): (1985) 7 EHRR 528 at : a compulsory patient is deprived of his liberty in the hospital where he is detained, irrespective of the openness or otherwise of the conditions there. [Back]
Note 8 This was the language of Storck see : “She had been under continuous supervision and control of the clinic personnel and had not been free to leave the clinic during her entire stay there of some 20 months”, deriving essentially from the decision of the HL v United Kingdom (2004) 40 EHRR 761, at  [Back]
Note 9 See Re A-F  EWHC 138 (Fam) at , repeating comments made in JE v DE  EWHC 3459 (Fam) at , which had been cited with approval in Re D (A Child)  EWCA Civ 1695,  [Back]