England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		28th July 2015

MR. JUSTICE KEEHAN:

Introduction

1. In this matter, I am concerned with one child, AB, who is 14 years of age. He currently resides at X children's home under the auspices of an interim care order. The parties are agreed that the circumstances in which AB lives at that establishment amount to a deprivation of his liberty.
2. AB's mother is D and his father is S. They are respondents to the care proceedings and to this application for permission by the local authority to seek to invoke the inherent jurisdiction of the High Court to authorise AB's placement. AB has a sister, R, who is 13 years of age. R is the subject of an interim care order and lives with foster carers.
3. There is a large measure of agreement between the parties on the relevant factual matrix and the legal principles applicable to the issues I am asked to determine, namely:

(1) Whether AB is deprived of his liberty at X.

(2) If so, are the parents and/or the local authority entitled to consent to the same?

(3) If not, whether the court will sanction the deprivation of liberty and, if so, under what provision, power or jurisdiction?

(4) Whether it would be appropriate to give guidance on the approach to, and conduct of, similar cases.

Background

4. The family have been known to social services since 2000. The mother left the family home in 2005 and has not since assumed the care of either AB or R. She accepts that, since then, she has had limited and inconsistent involvement in the children's lives. She has been in a relationship with a registered sex offender, from 2008, which continues. The mother and her partner deny that he inappropriately touched R in April 2008. The local authority has prepared a risk assessment as a prelude to the possible reintroduction of contact between R and her mother.
5. The mother has recently been diagnosed by Dr. Gillette, a psychologist, as "on the cusp" of having a learning disability and, although she does have capacity to conduct litigation, she would need support in any assessment process. Dr. Gillette assessed the father as presenting with overall borderline low average intellectual functioning, with weaknesses in his working memory, processing speed and perceptual reasoning.
6. Upon the mother's departure, the father became the children's primary carer. Over the years, however, there have been issues about the physical condition of the home and the father's supervision of the children. On 5 November 2013, the father hit AB with a broom, for which he received a caution. This incident led to AB being removed from the home, to reside in Y House for a short period, pursuant to the provisions of s.20 of the Children Act 1989. R was placed with a paternal aunt.
7. On 26 November 2013, AB and R were made the subjects of child protection plans under the categories of neglect and emotional abuse, respectively.
8. AB moved from Y House to foster carers. Unfortunately, this placement was short-lived because of AB's sexualised behaviour. He moved back to Y House on 6 December 2013 and then moved to X on 10 December, where he remains placed to date.
9. R returned to her father's care on 23 February 2014. There continued to be concerns about the father's supervision of R and support was provided to him. He continued to have contact with AB, which was progressing well, and, by early 2015, the contact had moved to unsupervised contact, then, moved into the community and then to the family home. A rehabilitation plan was agreed for AB to move to live with his father and he was to have his first overnight stay at the family home on 3 April 2015.
10. On 1 April, however, the father was arrested on suspicion of downloading indecent images of children. He was granted bail, one condition of which was that he was not permitted to have unsupervised contact with any person under the age of 18 years. R was accordingly placed in care, initially under a police protection order, and, subsequently, pursuant to a s.20 Children Act agreement.
11. On 5 May 2015, the local authority made applications for care orders in respect of AB and R. They were made the subjects of interim care orders on 1 June 2015. On the same date, the issue of AB's deprivation of liberty was transferred to the High Court; it came before me for directions on 2 June.

AB

12. AB has a moderate severe learning disability and attention deficit hyperactivity disorder, for which he is prescribed medication. He has a statement of special educational needs and attends a special school at Z School . He attends the Child and Adolescent Mental Health Service, where he is under the care of Dr. Allington Smith.
13. AB's circumstances at X are set out in the statement of his allocated social worker, Ms. MN, of 10 June 2015. There are always three staff on duty during the day and two at night for the three residents, including AB. Whilst AB is not on one-to-one supervision within the unit and may be left unsupervised for short periods, the behaviour plan states:

"Staff must be aware of where AB is at all times. AB should be checked regularly. Staff must be authorised to work alone with AB. AB must never be left alone with another resident."

He is also under observations every 15 minutes. He takes his medication under supervision. AB is not allowed to leave the unit, e.g. to go to school, unaccompanied and is closely supervised when out of the unit. On public transport, he is watched at all times. If he behaves badly when out, and despite warnings, he continues to behave badly, he must be immediately returned to the placement. If he were to leave the placement unaccompanied, staff would call social services and the police to assist with his return. The front door is locked at night and, if AB leaves his room, staff must redirect him back to his room unless he wants a drink or to go to the toilet. The social worker concluded:

"AB is under the continuous supervision of staff, who are aware of his whereabouts at all times. AB is residing in a care setting, where he is not free to leave unsupervised. He is also not able to contact his family independently. All behaviour that is perceived to be challenging is managed with verbal redirection. AB is also on an ongoing prescription of sedative medication which alters his behaviour and is a form of chemical restraint."

14. The children's guardian observed:

"AB is not able to leave the placement without a worker accompanying him. This is due to AB's vulnerabilities in terms of identifying risk and keeping him safe and the restrictions are necessary and proportionate for ensuring AB's safety, welfare and development, as they would be for any other child of his age with his level of need."

15. The behaviour plan provides, in part, that:

(1) Staff must be aware of where AB is at all times. AB should be checked regularly. Staff must be authorised to work alone with AB. AB must never be left alone with another resident.

(2) Staff should only allow AB to undertake activities outside the unit if his behaviour warrants it. If staff are in doubt about taking AB out, due to concerns they may have in terms of his mood or behaviour at that time, they should immediately inform him of this, clearly explaining their reasons to him, highlighting what their expectations are, before this can be accommodated. Before exiting the unit for activities, staff should ensure they have clearly voiced their expectations in terms of his behaviour while out in the local community. If AB displays any negative behaviour while out on an activity, staff should ask him to stop and give him the opportunity to amend his behaviour.

(3) AB is only to be taken on public transport if he is calm and settled. Staff are to be clear with him where they are going and what transport they are getting on with him. Staff are either to sit beside AB or behind him but not in front of him. Staff would be able to see him at all times. AB can hold his travel ticket while out with staff. If his behaviour escalates, then he is to return with staff to the unit. If the staff cannot do this alone, then they are to call the unit and support will be sent if possible. AB is known to occasionally exit his bedroom during the night. In the event of him doing this, staff should, first, identify the reasons for him doing so. If he states he requires either the toilet or a drink, staff must allow him the opportunity of accessing either. Staff must remind him of the time, redirecting him back to his room by encouragement in a firm tone of voice. If AB refuses, staff should ask him again in a firm tone of voice. If he still fails to follow staff directions, staff should positively ignore him but remind him of the time every ten minutes for no more than 30 minutes. If this continues, AB should be informed that a sanction will be issued because of his failure to comply with the request made.

(4) If AB is in his room or the bathroom then staff can leave the room for a couple of minutes. While AB is in the bath, staff can lock the door from the outside and sit outside and check on him visually and verbally during bath time.

16. Notwithstanding the restrictions on his liberty AB is happy and settled at X. He wishes to remain living there.
17. The social worker has assessed AB not to be competent to make decisions and that he lacks the mental capacity to do so. He noted:

"The nature and degree of his disabilities are such that his cognitive abilities, in particular, his ability to process new information, recall it, use it and weigh it up, are impaired."

The Law

18. In the case of Cheshire West, the Supreme Court considered the issue of a deprivation of liberty in the context of the living arrangements of mentally incapacitated individuals. It was held by the majority that, since the term "deprivation of liberty" was to be given the same meaning in domestic law as in Article 5 of the Convention, it was to be construed by reference to the relevant jurisprudence of the European Court of Human Rights.
19. Having undertaken a review of decisions of the European Court of Human Rights, Baroness Hale said, 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.

38. ... the difference between restriction and deprivation of liberty is one of fact and degree in which a number of factors may be relevant. Simply asking whether a person is 'confined' is not enough except in obvious cases. The 'starting point' is always upon the 'concrete situation' of the particular person concerned and 'account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question' ... The presence or absence of coercion is also relevant. Thus there is no single 'touchstone' of what constitutes a deprivation of liberty in this or any other context."

Later, at para.45:

"In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

46. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.

49. The answer, as it seems to me, lies in those features which have consistently been regarded as 'key' in the jurisprudence which started with HL v United Kingdom: that the person concerned 'was under continuous supervision and control and was not free to leave'. I would not go so far as Mr Gordon QC, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty.

50. The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, 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. For the reasons given above, I agree with that approach."

20. Baroness Hale considered the decision of the European Court of Human Rights in the case of Nielsen v Denmark [1988] 11 EHRR 175. There the court found that the hospitalisation of a 12-year-old for five months was not a deprivation of liberty; it was rather the responsible exercise by the mother of her custodial rights in the interests of a child. Baroness Hale observed that the decision of the court in that case would "appear therefore ... to turn on the proper limits of parental authority in relation to the child [para.30]." Lord Neuberger referred to the decisions in Nielsen as "controversial" (para.72).
21. Later in the judgment, she said, at para.54:

"If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions."

22. In relation to the phrase "free to leave", this was considered by Munby J (as he then was) in JE v DE [2007] 2FLR 1150, when he observed:

"... when I refer to leaving the X home and the Y home, I do not mean leaving for the purpose of some trip or outing approved by SCC or by those managing the institution; I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses ..."

23. In Re D [2015] EWHC 922 (Fam), I said, at paragraphs 42 to 44 and 46, as follows:

"The protection of Article 5 of the Convention and the fundamental right to liberty applies to the whole of the human race; young or old and to those with disabilities just as much to those without. It may be those rights have sometimes to be limited or restricted because of the young age or disabilities of the individual but 'the starting point should be the same as that for everyone else', per Baroness Hale: Cheshire West at paragraph 45.

The majority in Cheshire West decided that what it means to be deprived of liberty is the same for everyone, whether or not they have a physical or mental disability: per Baroness Hale in Cheshire West at paragraph 46.

I accept the essential ratio of Cheshire West does not apply to the circumstances of this case. Nevertheless, in my view, the acid test definitions of a deprivation of liberty apply as much to D as they did to the subjects of the appeals in Cheshire West.

The essential issue in this case is whether D's parents can, in the proper exercise of parental responsibility, consent to his accommodation in Hospital B and thus render what would otherwise be a deprivation of liberty not a deprivation of liberty (ie the 2nd limb in Cheshire West is not satisfied)."

24. The parties all submit that, applying those principles to the factual circumstances of AB's life at a children's home, he is deprived of his liberty as opposed to his liberty merely being restricted. I agree. Whilst he may, when he is well behaved, leave the home from time to time for specified periods, overall, he is the subject of continuous supervision and control to a degree which amounts to a deprivation of his liberty. I refer in particular to those passages of the behaviour support plan in paragraph 15 above.

Deprivation of liberty consent

25. I have previously considered the issue of whether a parent in the exercise of his/her parental responsibility could consent to a set of circumstances which would otherwise amount to a deprivation of liberty of his or her child. In Re D, above, I observed at paragraphs 51 to 61 as follows:

"When D attains the age of 16 his future accommodation and any deprivation of liberty involved will be matters for the Court of Protection to consider. The fact that a different regime and different considerations will apply once D has become 16 should not, in my judgment, affect the approach I should take during any period when he is not 16.

On the facts of this case I am wholly satisfied that D lives in conditions which amount to a deprivation of his liberty. He is under constant supervision and control. The fact that D enjoys residing in the unit in Hospital B, that he is comfortable there and readily seeks out and engages with members of staff are irrelevant factors when considering whether there is a deprivation of liberty. So too are the facts that the arrangements have been made in his welfare best interests and have been, and are, to his benefit. A gilded cage is still a cage.

D was admitted to Hospital B on the recommendation of his treating clinicians because of his autism and his other conditions. The fact that his parents were (understandably) struggling to cope with caring for him at home was but one factor which culminated in the clinical decision to informally admit him to the hospital.

I wish to pay tribute to D's parents who have throughout acted in what they considered to be in the best interests of their elder son. They have, at all times, paid the closest interest in his care at the hospital and they have worked in co-operation with the clinicians, staff and carers at the unit. They have attended, or at least one of them has attended, the periodic reviews held at the hospital.

When considering the exercise of parental responsibility in this case and whether a decision falls within the zone of parental responsibility, it is inevitable and necessary that I take into account D's autism and his other diagnosed conditions. I do so because they are important and fundamental factors to take into account when considering his maturity and his ability to make decisions about his day to day life.

An appropriate exercise of parental responsibility in respect of a 5 year old child will differ very considerably from what is or is not an appropriate exercise of parental responsibility in respect of a 15 year old young person.

The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D's disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.

The parents of this young man are making decisions, of which he is incapable, in the welfare best interests of their son. It is necessary for them to do so to protect him and to provide him with the help and support he needs.

I acknowledge that D is not now cared for at home nor 'in a home setting'. His regime of care and treatment was advised by his treating clinicians and supported by his parents. They wanted to secure the best treatment support and help for their son. They have done so. It has proved extremely beneficial for D who is now ready to move to a new residential home out of a hospital setting. What other loving and caring parent would have done otherwise?

Those arrangements are and were made on the advice of the treating clinicians. All professionals involved in his life and in reviewing his care and treatment are agreed that these arrangements are overwhelmingly in D's best interests. On the facts of this case, why on public policy or human rights grounds should these parents be denied the ability to secure the best medical treatment and care for their son? Why should the state interfere in these parents' role to make informed decisions about their son's care and living arrangements?

I can see no reasons or justifications for denying the parents that role or permitting the state to interfere in D's life or that of his family."

26. Do the same considerations apply when a child is accommodated by a local authority pursuant to s.20 of the Children Act 1989? The only possible answer is they may do. It will all depend on the facts of the individual case. At one extreme, an agreed reception into care of a child, that is beneficial and for a short-lived period, where the parent and the local authority are working together co-operatively in the best interests of the child, may be an appropriate exercise of parental responsibility. Thus it would be appropriate for that parent to consent to the child residing in a place (for example, a hospital) for a period and in circumstances which amount to a deprivation of liberty.
27. At the other extreme, there will be cases where children have been removed from their parents' care pursuant to a s.20 agreement as a prelude to the issue of care proceedings and where the local authority contend the threshold criteria of s.31(2) of the Children Act 1989 are satisfied. In such an event, I find it difficult to conceive of a set of circumstances where it could properly be said that a parent's consent to what, otherwise, would amount to a deprivation of liberty, would fall within the zone of parental responsibility of that parent. This parent's past exercise of parental responsibility will, perforce of circumstances, have been seriously called into question and it would not be right or appropriate within the spirit of the conclusion of the Supreme Court in Cheshire West to permit such a parent to so consent.
28. Where a child or young person is in the care of a local authority and is subject to interim or care orders, the reasoning in paragraph 27 applies with even greater force, especially when one considers the effect of an interim care order, which includes the power of the local authority to restrict "the extent to which a parent may meet his parental responsibility for the child" (s.33(3)(b) Children Act 1989).
29. 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).

The powers of the court

30. The parties submitted there were two possible routes to authorise the deprivation of liberty: (1) the use of s.25 of the Children Act 1989, or (2) the inherent jurisdiction of the High Court.
31. The first proposed route does not, in my judgment, provide an appropriate mechanism for the authorisation of a deprivation of liberty. A secure accommodation order has a punitive quality to it. It is designed for young people who are looked after by a local authority, who, by reasons of their actions, are likely to abscond and, thus, suffer significant harm or injure themselves or others.
32. Further, and in any event on the facts of this case, AB does not satisfy the criteria of s.25(1)(a) or (b). Moreover, X children's home is not registered under regulation 3 of the Children's Secure Accommodation Regulations 1991. Thus, if a secure accommodation order were made in respect of AB, he would be required to move to an approved establishment. It is agreed by all parties that such a move would be wholly inimical to his welfare best interests.
33. Thus the court is left with its powers under the inherent jurisdiction. I may only grant the local authority permission to invoke the inherent jurisdiction to seek an authorisation of AB's deprivation of liberty if the provisions of s.100(4) of the Children Act 1989 are satisfied. They provide that:

"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."

34. I am satisfied that the result which the local authority wishes to achieve cannot be achieved by the making of any other kind of order. Further, I am satisfied that, if the court's jurisdiction is not exercised, AB is likely to suffer significant harm. Absent a deprivation of liberty authorisation, AB's continued placement at X would be unlawful and in breach of Article 5. The local authority, as a public body, is required by s.6 of the Human Rights Act 1998 not to act in a way which is incompatible with a Convention right. Accordingly, AB would have to move to another establishment, where he would not be under constant supervision and control. Such a move would not be in his welfare best interests and it is likely he would suffer significant harm as a result. AB, at this time, would not wish to move to another residential establishment.
35. The local authority submitted that there was a third option. Where a court was considering making an interim care order or a care order, on the basis of a care plan which proposed accommodation of the subject child which amounted to a deprivation of liberty, then the court, on making the interim or care order, would thereby have explicitly or implicitly authorised the deprivation of liberty.
36. In my judgment, this is not a viable option. When the court makes a care order it hands over control of the child to the local authority such an authorisation would not, and could not, afford the necessary degree of safeguards and periodic, independent checks required by the provisions of Article 5 of the Convention. For these purposes, the local authority child care review, chaired by an independent reviewing officer, would not, in my judgment, afford the required safeguards and checks, sufficiently independent of the state.
37. In all of the circumstances, I am satisfied that I should (1) grant the local authority permission to invoke the inherent jurisdiction and (2) authorise AB's deprivation of liberty at X. In the first instance, that authorisation will be for a period of three months from today.

Observations

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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