ON APPEAL FROM THE COURT OF PROTECTION
MR JUSTICE MOSTYN
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE GROSS
MRS JUSTICE BARON
| RK (By her litigation friend the Official Solicitor)
|- and -
(2) YB(3) AK
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Jonathan Cowen (instructed by BCC) for the First Respondent
David Lock QC and Laura Davidson (acting pro bono instructed by Anthony Collins Solicitors) for the Second and Third Respondent
Hearing dates : 12 – 13 October 2011
Crown Copyright ©
Lord Justice Thorpe:
"5.1 Upon determination of whether RK lacks capacity to decide the following:1. What her health and social needs are;2. Identify an appropriate residential placement suitable for her needs;3. Identify appropriate medical and/or therapeutic interventions to meet her needs.5.2 1. An interim report be prepared in relation to RK's capacity to make decisions specified in 5.1 above.2. An up to date core assessment and care plan be completed.3. An interim report be prepared in relation to whether KC home is appropriate to meet RK's needs.4. BCC disclose details of why RK has moved residence, the s47 investigation, risk assessments and any other documents relating to RK and which impact upon her under the s20 agreement.5. It be declared that BCC will not take any decision in relation to RK's welfare or residence without consulting her parents as required.
5.3 To determine RK's capacity to make welfare decisions.To investigate the risks posed to RK by BCC's choice of residence and decision making and whether those choices and decisions are reasonable and in RK's best interests.To ensure RK's parents are kept informed as required under s20 agreement of BCC's proposed decisions in relation to RK's welfare.To protect RK from abuse she may be suffering whilst in the care of BCC, and investigate the nature of that abuse."
"YB is RK's representative and litigation friend. RK is voluntarily placed with the Local Authority and as such parental responsibility is shared with BCC. As RK can not communicate, YB as her mother is best placed to indicate what RK's wishes and feelings are and for this reason is acting as her litigation friend. RK is very upset in her current placement and is not eating which among other reasons, is why YB wishes to bring the application on RK's behalf to have RK's best interests determined. YB has no view on what is in RK's best interests in so far as she will agree with whatever the Court decides, should RK be deemed as not having capacity.
As there is a degree of urgency to the application, RK via YB made the application for determination of her best interests rather than negotiating with the Local Authority to make the application.
Once capacity has been determined, if RK is deemed to not have capacity; YB wishes to step aside as RK's litigation friend and allow the Official Solicitor to represent her daughter's interests."
"My primary decision is that, given the terms of Section 20(8), the provision of accommodation to a child, whether aged seventeen or seven, under Section 20(1), (3), (4) or (5) will not ever give rise to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights. If the child is being accommodated under the auspices of a care order, interim or full, or if the child had been placed in secure accommodation under Section 25, then the position might be different, but that is not the case here. "
"Given the terms of Section 20(8) of the Children Act 1989 where the accommodation was being provided with the consent of a person who is lawfully exercising parental responsibility, the provision of accommodation to a child of any age under Sections 20(1), 20(3), 20(4) or 20(5) will not ever give rise to a deprivation of liberty within the terms of Article 5 of the ECHR."
"(Mr Lock's position) on behalf of the parents is that whilst they have considerable reservations about the care regime for their daughter at KCH, in the absence of any practical alternative they accept that KCH is the most suitable place for RK at these present times. "
"I find it impossible to say, quite apart from s20(8) Children Act 1989, that these factual circumstances amount to a "deprivation of liberty". Indeed it is an abuse of language to suggest it. To suggest that taking steps to prevent RK attacking others amounts to "restraints" signifying confinement is untenable. Equally, to suggest that the petty sanctions I have identified signifies confinement is untenable. The supervision that is supplied is understandably necessary to keep RK safe and to discharge the duty of care. The same is true of the need to ensure that RK takes her medicine. None of these things whether taken individually or collectively comes remotely close to crossing the line marked "deprivation of liberty"."
Lord Justice Gross
i) The primary ground (judgment, at ) was that, given the terms of s.20(8) of the Children Act 1989 ("the Act"), the provision of accommodation to a child under s-s 20 (1), (3), (4) or (5) "will not ever give rise to a deprivation of liberty within the terms of Art 5 of the European Convention on Human Rights." The learned Judge acknowledged that the position might be different if the child was accommodated under the auspices of a care order or if the child had been placed in secure accommodation under s.25; but that was not this case.
ii) The secondary ground (judgment, at ) was that, on the facts of the present case and quite apart from s.20(8) of the Act, it was "impossible" to say that there had been a "deprivation of liberty" within Art. 5, ECHR. To suggest that it was, the Judge said, amounted to "an abuse of language".
Provided either of these grounds is well-founded the appeal must be dismissed.
" I would hold therefore that there is room, even in the case of fundamental rights as to whose application no restriction or limitation is permitted by the Convention, for a pragmatic approach to be taken which takes full account of all the circumstances. "
Mrs Justice Baron
I agree also.