England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/03/2017

Mr Justice Keehan :

Introduction

1. I am concerned with one young man, "C" who was born in May 2001 and is therefore 15 years of age. C's mother is the first respondent, D. She has been assessed to lack capacity to litigate and was represented by the Official Solicitor as her litigation friend in these proceedings. C's father is the second respondent, E. He was not represented in this hearing and has played no part in same.
2. The applicant local authority brought this application under the inherent jurisdiction, to seek permission pursuant to section 100 of the Children Act 1989 to obtain the court's authorisation of what the local authority contended is C's deprivation of liberty in his current residential unit. C is represented by his Children's Guardian.

Background

3. C was made the subject of a care order on 7^th February 2002. He is the youngest of five children. His siblings were all subsequently adopted. C has two adult half-siblings who are the children of his mother. He was placed in the care of his mother under the auspices of the care order. He was removed from his mother's care and placed in foster care in August 2007. C was noted to exhibit overly sexualised behaviour towards other children and engaged in behaviours which placed himself and others at risk of harm. Suffice it to say for the purposes of this judgment that it is agreed he has had a troubled childhood.
4. In July 2009 C was placed in a long-term foster placement which subsisted until August 2014. The increasingly difficult behaviours exhibited by C led him to move to another foster placement which then unfortunately also broke down. In or about April 2015 C moved to live in what I will describe as "N House", a residential unit where he remains to date. This unit was identified because the local authority concluded that C required a specialist residential unit with high levels of supervision and where staff were specifically trained to manage high levels of aggression and intimidation and to work with C to manage his sexualised behaviours.
5. The regime under which C lives at the residential unit may be summarised as follows:

a. staff know the whereabouts of C at all times;

b. he is never left alone in the unit;

c. he is never left alone with other residents;

d. he is subject to 1:1 staffing including during breaks at school. C is subject to constant observations by staff and has no free time when he is not observed;

e. the external doors of the unit are locked at night;

f. the bedroom doors are alarmed at night to ensure privacy and to ensure the whereabouts of all residents, including C, are known. C is not permitted to enter another resident's bedroom (which restriction applies to all residents);

g. internal doors are locked if C's behaviour necessitates the same;

h. C cannot leave the unit unsupervised and cannot leave unaccompanied without permission;

i. he is monitored at all activities outside of the unit and is accompanied on all recreational and social events;

j. he is not permitted any internet access and the use of his mobile telephone is restricted to call only four telephone numbers; and

k. C cannot travel alone on public transport.

6. Early on in his placement there was an incident in July 2015 when C barricaded himself into his room and threatened to self-harm. The police were called and the situation was resolved. There has not been a repeat of such behaviour. An issue upon which the local authority and the Official Solicitor placed considerable emphasis are the examples of C either (a) testing the boundaries of the close supervision at the residential unit, (b) resisting or refusing to comply with the restrictions placed upon him, and/or (c) breaching on occasions what may be termed the house rules.

The Hearing & Judgment

7. C was present in court at the hearing on 17 November 2016. At the conclusion of the parties' submissions I decided it would not be in C's best interests for me to reserve judgment nor would it be appropriate for me to deliver a full judgment making extensive reference to the authorities to which I had been referred or to the full and helpful submissions made by counsel. Accordingly, I delivered a short ex tempore judgment announcing my decision and giving short reasons for reaching the same.
8. This revised version of my ex tempore judgment includes references to the authorities and sets out the submissions I received from counsel. I am grateful to counsel for their respective skeleton arguments.
9. Before finding that C is deprived of his liberty in the residential unit I must be satisfied, on the basis of the test propounded in Storck v. Germany [2005] EHRC 406, that:

a. Limb one of Storck is established, namely that C is confined to a certain limited place for a not negligible length of time;

b. He cannot in law consent to his confinement or he does not, as matter of fact, consent of his confinement; and

c. The fact of his confinement is imputable to the actions of the state.

There is no dispute that limb three of Storck is satisfied on the facts of this case.

Summary of the Positions of the Parties

10. The local authority asserted that:

a. C is so confined at the residential unit that limb one of Storck is satisfied;

b. given that C has been assessed by his children's guardian and his legal team as "Gillick competent", he can in law consent to his confinement but in fact he does not consent;

c. the only mechanism by which his deprivation of liberty can be authorised by the court is for the local authority to be permitted to seek the authorisation under the inherent jurisdiction of the High Court.

11. The Official Solicitor broadly agreed with those assertions save that he further contended that:

a. C can in law probably consent to his confinement;

b. before concluding that C does in fact give a valid consent to his confinement, the court must be satisfied that he not only consented at the date of the hearing but that it is likely or probable that his consent would continue to be given and would not be withdrawn for an appreciable future period of time;

c. it is uncontroversial that a consent once withdrawn cannot be relied upon for confinement thereafter; and

d. the use of the inherent jurisdiction to authorise a deprivation of liberty is not Article 5 compliant, but there is nevertheless no alternative route on the facts of this case by which any deprivation of liberty can be authorised.

12. On behalf of C it is submitted that:

a. his confinement at the residential unit does not satisfy limb one of Storck;

b. if it does, C can in law and does in fact consent to the same; and

c. accordingly, any issue of the court having to authorise his confinement at the unit does not arise.

Submissions – the Local Authority

13. The local authority sought the court's leave, pursuant to s.100(3) CA 1989, to make an application under the inherent jurisdiction of the High Court for the authorisation of C's deprivation of liberty at the residential unit. On behalf of C it was submitted that there was no reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect of C he is likely to suffer significant harm.
14. The local authority took issue with this assertion.
15. The provisions of ss.100(2)-(5) CA 1989 are as follows:

"(2) No court shall exercise the High Court's inherent jurisdiction with respect to children—

(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b) so as to require a child to be accommodated by or on behalf of a local authority;

(c) so as to make a child who is the subject of a care order a ward of court; or

(d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3) No application for any exercise of the court's inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4) 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.

(5) This subsection applies to any order—

(a) made otherwise than in the exercise of the court's inherent jurisdiction; and

(b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted)."

16. In making its application for the court to exercise the inherent jurisdiction in this case, the local authority relied on two previous decisions of mine, namely Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam) & A Local Authority v. D & Othrs [2015] EWHC 3125 (Fam). The local authority submitted that it particularly relied on the following propositions derived from A Local Authority v. D & Othrs:

(i) 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.

(ii) The Cheshire West^[1] criteria must be rigorously applied to the individual circumstances of each case. 

(iii) 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.

(iv) 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. 

(v) 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 [in respect of a child under the age of 16] 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.

(vi) Where a child is a looked-after child, different considerations may apply, regardless of whether the parents consent to the deprivation of liberty.

(vii) 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.

(viii) 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.

(ix) 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. 

(x) 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.

17. In the premises the local authority submitted that it should be granted leave to make the application under the inherent jurisdiction in the following circumstances and for the following reasons:

(i) C is cared for by the local authority pursuant to a care order. He is not the subject of a secure accommodation order (s25 CA 1989), remanded (pursuant to LASPO) or detained under the Mental Health Act 1983;

(ii) Section 25 of the Children Act 1989 is not applicable or appropriate in the circumstances of C's individual case. C's home is not registered under regulation 3 of the Children (Secure Accommodation) Regulations 1991;

(iii) Consequently, if C is deprived of his liberty (a matter of fact for the court to determine, discussed below), then any such deprivation is an unlawful interference with his Article 5 rights;

(iv) If, as the local authority asserts is the case, C is deprived of his liberty then any such deprivation of liberty is unlawful unless it is authorised;

(v) Further, the unlawful deprivation of liberty as described above is likely to (and the applicant asserts, must) constitute significant harm.

(vi) The use of the inherent jurisdiction is the only way (at the time of writing) that the significant harm which C is suffering (namely, being unlawfully deprived of his liberty) may be ended.

(vii) Put another way in the context of s100 (4):

(a) the result which the authority wish to achieve (namely authorising the deprivation of liberty to which C is exposed) 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 (by virtue of being deprived of his liberty)

18. On the issue of whether C was subject to a degree of confinement, which absent a valid consent, would amount to a deprivation of his liberty, I was referred to Art. 5 of the European Convention and to the decision of the Supreme Court in P (By his litigation friend the Official Solicitor) v. Cheshire West and Cheshire Council and Another, P and Q (by their litigation friend the Official Solicitor) v. Surrey County Council [2014] UKSC 19 ("Cheshire West").
19. The relevant part of Art. 5 provides:

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

20. In Cheshire West Baroness Hale observed, at paras 46, 48 & 49:

"[The United Nations Convention on the Rights of Persons with Disabilities] 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….. So is there an acid test for the deprivation of liberty in these cases?.... 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 40 EHRR 761: that the person concerned "was under continuous supervision and control and was not free to leave" (para 91). I would not go so far as Mr Gordon, 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. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany."

21. In his concurring judgment Lord Neuberger said, at para 63:

"In agreement with Lady Hale, I consider that the Strasbourg court decisions do indicate that the twin features of continuous supervision and control and lack of freedom to leave are the essential ingredients of deprivation of liberty (in addition to the area and period of confinement). In that connection, see Guzzardi v Italy (1980) 3 EHRR 333, para 95 ("supervision … carried out strictly and on an almost constant basis … [and] not able to leave his dwelling between 10 pm and 7 am"), HL v United Kingdom (2004) 40 EHRR 761, para 91 ("under continuous supervision and control and … not free to leave"), Storck v Germany (2005) 43 EHRR 96, para 73 ("continuous supervision and control … and … not … free to leave"), Kedzior v Poland (Application No 45026/07) 16 October 2012, para 57 ("constant supervision and … not free to leave"), Stanev v Bulgaria (2012) 55 EHRR 22, para 128 ("constant supervision and … not free to leave"), and Mihailovs v Latvia [2013] ECHR 65, para 132 ("under constant supervision and … not free to leave")."

22. The phrase 'free to leave' had earlier been defined by Munby J., as he then was, in JE v. DE [2007] 2 FLR 1150 to mean "leaving in the sense of removing [themselves] permanently in order to live where and with whom one chooses".
23. The local authority submitted that the application of those principles to the facts of this case led to the inevitable conclusion that, absent a valid consent, C was deprived of his liberty.
24. In relation to the subjective component of consent, the local authority submitted, based on my judgment in Re D (above), that C's parents could not consent to his confinement in the residential unit given (i) he had been made the subject of a care order and (ii), in relation to his mother, in light of the fact that she lacked the capacity to litigate and her mental health difficulties, it was likely that she lacked the capacity to give consent to his confinement. Further, it was conceded that the local authority, as C's corporate parent, could not consent to his confinement or otherwise authorise any deprivation of his liberty.
25. The local authority asserted that although C could, in law, consent his confinement at the unit, he did not, in fact, consent to the same. In support of this assertion it relied on the evidence filed and served about C's recent conversations with staff members and his social worker and on his behaviour. If C withdrew his consent, then the local authority would have to consider making a further application under the inherent jurisdiction to seek authorisation of his deprivation of liberty or, if the circumstances required the same, to apply for a secure accommodation order on the basis that C needed to be placed in a secure unit.
26. In the course of oral submissions Mr. Kingerley, counsel for the local authority conceded that C did not need to consent to every restriction placed upon him at the unit. It was sufficient that he consented to a degree of confinement and/or restrictions which, absent a valid consent, would amount to a deprivation of liberty.
27. There was no issue between the local authority, the Official Solicitor and C that, whatever legal framework should underpin C's placement at the unit, the restrictions to which he was subject were in his best interests and proportionate.

Submissions – the Official Solicitor

28. The Official Solicitor agreed with the submissions of the local authority that if C is Gillick competent, then he was, as a matter of law, able to consent to his confinement at the unit. It was submitted by Ms Butler-Cole, on behalf of the Official Solicitor that:

There is nothing in the Strasbourg jurisprudence to suggest that there is an age below which valid consent is not possible. The caselaw tends to proceed on the basis that the individual either does or does not have decision-making capacity under relevant domestic legislation by ascertaining whether the person 'of age' or not, without then seeking to investigate the issue further.

[ … ] In any event, the domestic law of England and Wales, cannot be said to impose a clear cut-off for the acquisition of legal capacity, because of the concept of Gillick competence. Although the presumption of capacity does not apply to children under 16, and so there is a difference in the legal framework that applies, the fact that children under 16 may, in particular cases, be judged competent to make their own decisions, makes it hard to see how, as a matter of principle, the possibility of consent by a child under 16 could be excluded, whatever the decision at issue.

The Official Solicitor submits that as a matter of principle, provided a person has capacity (or competence) to make decisions about whether to be "detained" or "confined" in such a way which would otherwise be a deprivation of his or her liberty absent consent, valid consent could be given by that person, regardless of age. [ … ]

29. In relation to the issue of whether a child under the age of 16 is competent to give a valid consent the Official Solicitor submitted that the court must have regard to the following matters:

It is submitted that when considering whether a child under 16 is competent to give valid consent, the decision-maker must give careful consideration to the following:

a. Whether the child is in fact consenting, having regard not just to what the child says, but also what the child does;

b. Whether the child's consent is likely to persist throughout the period of objective confinement.

30. On the facts of this case Ms Butler-Cole submitted that C does not in fact consent to his confinement at the unit. In support of that submission she relied on the following matters:

[C] has said on multiple occasions that he wants more freedom and that he disagrees with the restrictions that are imposed on him. See:

a. Statement of [C] dated 3.6.16 pointing out which freedoms permitted to other residents he would like including in particular not having 1:1 supervision at all times.

b. Statement of Angela Hallam dated 11.7.16 noting a conversation with Ms Sensicle who says that 'since the application for the Deprivation of Liberty [C] has developed a belief that he doesn't have to listen to her as the Judge will agree he can do what he likes'.

c. Statement of [C] dated 10.8.16 setting out that he is happy his guardian does not think it is in his best interests for the court to authorise his deprivation of liberty, and confirming that 'I do not believe I should be under any additional restrictions which do not apply to the other boys at the Home'.

d. Statement by Ms Sensicle dated 19.9.16 confirming that [C] is 'consistently clear with me that he would like more freedom, to be able to go out into the community by himself, have more time to himself and have free access to the internet without staff's monitoring regimes.'

e. Statement by Ms Sensicle dated 19.9.16 noting that [C] said he wanted free time at ['S' youth event] without staff so he could smoke.

f. Record by Ms Sensicle dated 30.9.16 noting that [C] 'commented that Court was ages away and he couldn't wait to get freedom. He said that then he'd "f*** off out of this house and go out and none of you would know where I was" in a defiant tone.'

g. Statement by Angela Hallam dated 26.10.16 noting that [C] says he does not agree with the rules when he is in a bad mood.

Further, there is continuing evidence of [C] refusing to comply with the restrictions in place:

a. Using the internet on 12.9.16.

b. Climbing out of his bedroom window on 13.9.16.

c. Stealing a cable from school to use to access the internet and Facebook without staff permission in April-June 2016.

d. Sneaking out of the house at night, including to visit friends.

f. Record by Ms Sensicle dated 9.9.16 noting that [C] 'sprinted off' out of her sight to speak to peers without supervision.

g. Planning to 'abscond' to see his girlfriend without supervision.

31. Ms Butler-Cole said in oral submissions that if there was a real likelihood that C would withdraw his consent at some date in the relatively near future, the court had to consider whether he was giving a valid consent. It was the view of the Official Solicitor that there was a real risk that C would withdraw his consent, such that he had not in truth given a valid consent to his confinement.
32. Accordingly, the Official Solicitor submitted that all three limbs of Storck were satisfied on the facts of this case and the court had to consider whether this court had jurisdiction to authorise C's deprivation of his liberty at the unit.
33. The Official Solicitor's primary submission was that this court does not have the jurisdiction to authorise C's deprivation of his liberty. He made the bold assertion that the use of the inherent jurisdiction in these circumstances is not compliant with the procedural requirements of Art. 5.
34. I was referred to the provisions of Art 5(1)(d) and (e) which are:

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;

35. There is no evidence on which the court could conclude that C is of 'unsound mind'. I can proceed on the basis, however, of Art 5(1)(d) in light of the generous interpretation the European Court of Human Rights has given to the meaning of this article. In Koniarska v. UK (Application 33670/96 12.10.00) the court observed:

"The Court considers that, in the context of the detention of minors, the words "educational supervision" must not be equated rigidly with notions of classroom teaching. In particular, in the present context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned."

36. The Official Solicitor posed the question whether C's detention in the unit was in accordance with a procedure prescribed by law as required by Art. 5(1). He submitted:

Section 25 Children Act 1989 provides an express power to place a child in secure accommodation, inevitably engaging Article 5. Whether a placement is secure accommodation within the meaning of s.25 is, however, a question of fact (see Re C (Detention: Medical treatment) [1997] 2 FLR 180). The current placement for [C] is, however, not registered by the Secretary of State for Health as secure accommodation under the Children (Secure Accommodation) Regulations 1991, and cannot therefore be used as secure accommodation (regulation 3^[2]).

The Official Solicitor submits, however, that this is not a complete answer to the question of the court's jurisdiction.

The reasons for the deprivation of [C]'s liberty in his present placement are the same as those set out in s.25: to prevent him from absconding and to prevent him causing harm to himself or others. The only reason s.25 does not apply is because of the nature of the placement he has been placed in, not the extent of the restrictions he is under. [C] is deprived of his liberty just as his peers in secure accommodation units are deprived of their liberty.

It is obviously anomalous that a child in [C]'s position does not have the benefit of any statutory framework governing his deprivation of liberty, in contrast to a child placed in registered secure accommodation. The Official Solicitor recognises that in recent cases (all involving Article 5(1)(e)) the court has invoked the inherent jurisdiction to authorise deprivations of liberty in settings that fall outside s.25 but doubts that the ad hoc use of the inherent jurisdiction in this way is adequate to satisfy the demands of Article 5.

The Official Solicitor notes that the President of the Family Division has recently held that s.25 is not a comprehensive statutory scheme and therefore that it would not 'cut across' the statutory scheme to invoke the inherent jurisdiction in respect of deprivations of liberty other than those falling within s.25 (In the matter of X and Y [2016] EWHC 2271 (Fam) at para 44). However, that does not deal with the requirement imposed by the ECtHR that the law itself must be certain: 'where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness' (Grabowski v Poland (30 June 2015) at para 46).

It is submitted that the use of the inherent jurisdiction in this case would not and could not satisfy these requirements. It is not accessible – there is no statute, no statutory or non-statutory governmental guidance, and there is no way to find out the basis on which the inherent jurisdiction will be invoked other than through a decision of the court. It is not precise – in the past few years it has been used to authorise deprivations of liberty in a range of situations covering children who are "looked after", those who are not, those who are under 16 and those over 16. It is not foreseeable – there are no definitive criteria for its use laid out. Indeed, there are no reported decisions at present involving a child who is subject to a care order whose deprivation of liberty has been justified by reference to Article 5(1)(d).

The approach taken by the President in In the matter of X and Y is to set out a series of procedural requirements within the caselaw, which reflect the procedural protections contained in the nearest equivalent statute (see para 49). There is clearly a difference between simply relying on an informal system of best interests decision making (as in HL v UK [2004] ECHR 471),and an application to the court by the local authority to obtain an order, which will then contain similar safeguards to the statutory scheme under s.25 CA 1989. The ECtHR has, however, never addressed whether such a system, in which a court application is required but where there is no statutory framework in place, could satisfy the requirements of Article 5. With the greatest respect, the Official Solicitor feels obliged to submit that even the use of the inherent jurisdiction in this manner may not be adequate to meet the ECtHR's requirement of legal certainty. The need for legal certainty has been recognised by Parliament in respect of incapacitated adults (by the insertion of sections 4A, 4B, 16A, and 21A of, and Schedules A1 and 1A to, the MCA 2005) and by the Government's request to the Law Commission to produce new draft legislation covering settings other than care homes and hospitals.

37. If the Official Solicitor's submissions are correct, he submitted there were three possible options, namely;

a. C's confinement at the unit could not be authorised and thus the local authority could not prevent him from leaving if he chose to do so;

b. the court could read down the secure accommodation regulations so as to treat the current placement as one being within the ambit of s.25 CA 1989; or

c. the court could exercise the inherent jurisdiction to authorise his deprivation of liberty but provided 'fixed procedural rules' as required by the European Court in HL v. UK (above).

Submissions – on behalf of C

38. Issue was taken on whether the local authority could establish that if the court did not exercise its inherent jurisdiction C would be likely to suffer significant harm: see paragraphs 14 to 18 above.
39. There is a distinction to be drawn between an applicant local authority satisfying the jurisdictional gateway of s.100(4)(b) CA 1989 and the court's ultimate conclusion on whether, on the facts of the particular case, it is in the best interests of the young person for the court to exercise its inherent jurisdiction to authorise what it has found to be a deprivation of that young's liberty. At the outset of an application under s.100 CA 1989, the court may well have no difficulty in coming to the conclusion that the young person is likely to suffer significant harm if the court does not exercise its inherent jurisdiction to authorise a deprivation of liberty. If the court did not do so there is a risk that the protective measures needed to ensure the safety and well-being of the young person could not be put in place or enforced. In AB (A Child: Deprivation of Liberty) (above) at para. 34 I said:

"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."

40. In these circumstances, the court may well, as I did in this case, grant the local authority permission to bring this application in relation to C's placement at the unit and to enable the court to consider (i) whether he was deprived of his liberty, if so (ii) whether the degree of confinement and/or restrictions to which he was subject were in his best interests and proportionate and (iii) whether the court should authorise his deprivation of liberty.
41. At the conclusion of oral evidence and/or submissions, however, the court having carefully considered the same may decide that:

a. it has not been established that the young person is deprived of his liberty; or

b. he is deprived of his liberty but the degree of confinement and the restrictions imposed are not in his best interests and/or are not proportionate; or

c. he is deprived of his liberty and the degree of confinement and the restrictions imposed are in his best interests and are proportionate.

In the event the outcome is either (a) or (b), the court will not exercise its inherent jurisdiction but if the outcome is (c), the court is most likely to exercise the same.

42. In the premises I do not accept the submissions advanced on behalf of C on this issue.
43. It is submitted on behalf of C that he is not subject to a regime at the unit which is either (a) significantly more restrictive than that experienced by other residents or (b) such as to satisfy the first limb of Storck. The principal reasons for this submission are:

'Freedom to leave' must be viewed on a broad canvas in the context of a young person who is subject to a care order. As the Guardian points out [F19], no child who is subject to a care order is free to leave and live with whom they want to. If a child in care absconds the carer would inevitably contact the police. While it is acknowledged that the Supreme Court in Cheshire West drew attention to the need compare P's situation with that of someone of your age and station whose freedom is not limited (per Lord Kerr at [§77]), this case has the prospect of bringing within the purview of the non-statutory DOLS regime all children who live in care homes or are in foster care.

The rules in "AH1" (except items 9 to 11) are in effect standard house rules, with appropriate contingencies should [C]'s conduct so require – for example item 7 'Internal doors are locked if [C's] behaviour requires this to happen'. Overall, the regime appears to be significantly less burdensome for [C] than was the case for the young person in Trust A v X and Others [2015] EWHC 922 (Fam).

It would appear from the statement of Rosie Ellington dated 4 November 2016 [C226-C235] that, save as appears below, [C] is subject to the same rules as the other residents at ["N House]. The Guardian's understanding is that no other residents are the subject of an order for the deprivation of their liberty:

Staff know the whereabouts of [C] at all times [all residents, save that [C] has 1:1 supervision but also times where he is shadowed].

a. Never left alone in the unit [all residents]

b. Never left alone with other residents [all residents]

c. Subject to 1:1 staffing including breaks at school. Constant observations by staff no free time when not observed [C only; one other resident has 2:1 staffing]

d. Unit locked at night [all residents, and not locked from the inside]

e. Bedroom door alarmed at night to ensure privacy and to ensure whereabouts are known. Not allowed in other residents' bedrooms [all residents]

f. Internal doors are locked if [C's] behaviour requires this to happen [all residents]

g. Cannot leave the unit by himself: cannot leave unaccompanied without permission. Police to be called if off site (and out of sight) without permission for more than 5 minutes [all residents]

h. Monitored at all off site activities; accompanied to recreational and social events [[C] shadowed]

i. Not allowed any internet access, mobile phone number can only be used to dial 4 numbers [[C] only, but relaxed over the last few months]

j. Cannot travel alone on public transport [all residents]

44. On the question of whether C can, in law, consent to his confinement at the unit, the following very helpful submissions are made:

There is no basis for concluding that a Gillick-competent child cannot consent to a deprivation of their liberty. It is helpful to note that the Official Solicitor agrees. Whether a child is able to consent will depend upon a professional judgment (legal or medical) as to whether they are Gillick-competent and has nothing to do with their chronological age: a 14-year-old may thus be competent, whereas a 17-year-old may not be. See the Law Society's publication "Identifying a deprivation of liberty: a practical guide" at para 2.18:

There have been very few decisions identifying what is required to have capacity to consent to what would otherwise be a deprivation of liberty. In M v Ukraine^[3], a case concerning deprivation of liberty in a psychiatric facility, the ECtHR held that: "… [T]he Court takes the view that a person's consent to admission to a mental health facility for in-patient treatment can be regarded as valid for the purpose of the Convention only where there is sufficient and reliable evidence suggesting that the person's mental ability to consent and comprehend the consequences thereof has been objectively established in the course of a fair and proper procedure and that all the necessary information concerning placement and intended treatment has been adequately provided to him."

It appears to have been expressly contemplated in Trust A (supra) that a child could consent to a deprivation of their liberty: 'D is assessed by Dr K as not being 'Gillick' competent to consent to his residence and care arrangements or to any deprivation of liberty' (paragraph [19], emphasis added).

While it is recognised that the Court has the power to override the decision of a Gillick-competent child in their best interests, this is generally confined to the situation in extremis where the child has for example refused life-sustaining treatment.^[4] DC is content with an enduring state of affairs, namely the current arrangements for his accommodation, and he ought where possible to be afforded the autonomy of agreeing with them. His competent compliance set his case apart from the experience of the compliant but incapacitated patient in In Re L (by his next friend GE); R v Bournewood Community and Mental Health NHS Trust, ex p L [1998] UKHL 24 whose situation ultimately spawned much of the Cheshire West jurisprudence.

It may instinctively seem offensive to permit children to consent to the deprivation of their own liberty. In terms of permitting autonomy to competent children, however, there is a powerful parallel under the scheme of the Mental Health Act 1983 ('MHA') - see the Code of Practice to the MHA at paragraph 19.65 (and 19.66 for completeness):

Under 16s - Informal admission and treatment of under 16s who are Gillick competent

19. 65 Where a child who is Gillick competent to decide about their admission to hospital for assessment and/or treatment of their mental disorder consents to this, they may be admitted to hospital as an informal patient. A child who is Gillick competent and has consented to being admitted informally, may also be given treatment if they are competent to consent to the proposed treatment, and do consent. Consent will be required for each aspect of the child's care and treatment as it arises. This will involve an assessment of the child's competence to make the particular decision and, where the child is competent to do so, confirmation that they have given their consent.

19.66 Where a child who is Gillick competent refuses to be admitted for treatment it may be inadvisable to rely on the consent of a person with parental responsibility (see paragraph 19.39). In such cases, consideration should be given to whether admission under the Act is necessary, and if so, whether the criteria are met. If the Act is not applicable, legal advice should be sought on the need to seek authorisation from the court before further action is taken.

It may be contended by others that whereas the assessment of DC's competence has been carried out by professionals (solicitor and Guardian) who are independent of the state system and 'on his side', no such guarantees of independent verification of Gillick-competence could be given if the assessment process were left for example to social workers. Thus it might be argued that, to avoid the need for time-consuming and burdensome court-based scrutiny, an over-stretched social worker might be tempted to 'pass' a young person as Gillick-competent to make the decision to consent to the deprivation of their liberty, thus relieving that social worker or his/her department of the burden of court-based reviews.

That argument fails, if advanced: it would amount to saying that social workers cannot be trusted to undertake a careful analysis of the extent to which a young person can truly consent to the deprivation of their liberty. The law has for many years provided that social work departments are entrusted with the task of implementing care plans which are far-reaching in their scope.

45. In relation to the issue of whether C does, in fact, consent to his confinement, it is submitted I should have close regard to the following matters:

a. each time the guardian has seen C, he understood and agreed to the restrictions that are placed upon him;

b. although he has pushed the boundaries, this is not to be equated with a lack of consent. He has been willing to stay at the unit and to engage with the staff;

c. it had not proved necessary to increase the restrictions to which he is subject; and

d. taking a broad view he had lived at the unit for 19 months and engaged well with difficult and intrusive work. Moreover, this is the first establishment where C has made progress.

46. C and his guardian both accept and acknowledge that the degree of confinement and restrictions to which he is subject at the unit are in his best interests and proportionate.
47. Mr. Chisholm, on behalf of C emphasised the following matters in oral submissions:

a. the circumstances in which C lives are very demanding for a 15 year old and he could have 'voted with his feet' but he has chosen not to do so;

b. there are no sustained breaches of the house rules nor a repeated pattern of breaches;

c. he understands why the restrictions are necessary to protect him and others around him; and

d. the unit undertook three monthly reviews of C case, including his confinement and the restrictions to which he is subject, in consultation with the local authority.

Analysis

48. I entirely accept Mr. Chisholm's submission that although all of the residents at C's unit have restrictions placed on their liberty, no other young person at the unit is the subject of an order authorising a deprivation of their liberty: see para 44(b)-(h) & (k) above. The guardian is most concerned about the risk of setting C apart from his peers if he is made the subject of such an order.
49. In addition to those restrictions, C is subject to 1:1 supervision when in the unit and when at school. He is accompanied and monitored at all recreational and social events he attends. He is not permitted access to the internet and his mobile is limited to dialling four telephone numbers. He has no free time when he is not under observation. He is not free to leave the unit.
50. I remind myself of the words of Lord Neuberger in Cheshire West:

"I consider that the Strasbourg court decisions do indicate that the twin features of continuous supervision and control and lack of freedom to leave are the essential ingredients of deprivation of liberty"

51. In my judgment the additional restrictions to which C alone is subject result in the conclusion that his liberty is not merely restricted but he is, absent a valid consent, deprived of his liberty. He is confined, supervised and controlled 24 hours a day.
52. In Gillick v. West Norfolk and Wisbech Area Health Authority [1985] UKHL 7 [1986] 1 FLR 224, Lord Fraser observed:

"It would, therefore, appear that, if the inference which Mrs. Gillick's advisers seek to draw from the provisions is justified, a minor under the age of 16 has no capacity to authorise any kind of medical advice or treatment or examination of his own body. That seems to me so surprising that I cannot accept it in the absence of clear provisions to that effect. It seems to me verging on the absurd to suggest that a girl or a boy aged 15 could not effectively consent, for example, to have a medical examination of some trivial injury to his body or even to have a broken arm set…. It is, in my view, contrary to the ordinary experience of mankind, at least in Western Europe in the present century, to say that a child or a young person remains in fact under the complete control of his parents until he attains the definite age of majority, now 18 in the United Kingdom, and that on attaining that age he suddenly acquires independence. In practice most wise parents relax their control gradually as the child develops and encourage him or her to become increasingly independent. Moreover, the degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence and it would, in my opinion, be unrealistic for the courts not to recognise these facts. Social customs change, and the law ought to, and does in fact, have regard to such changes when they are of major importance".

Lord Scarman concluded that:

"In the light of the foregoing I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances."

53. In the case of Mabon v. Mabon & Ors [2005] EWCA 634 [2005] 2 FLR 1101, Thorpe LJ said at para 26:

"In my judgment the Rule is sufficiently widely framed to meet our obligations to comply with both Article 12 of the United Nations Convention and Article 8 of the ECHR, providing that judges correctly focus on the sufficiency of the child's understanding and, in measuring that sufficiency, reflect the extent to which, in the 21^st Century, there is a keener appreciation of the autonomy of the child and the child's consequential right to participate in decision making processes that fundamentally affect his family life."

54. Taking account of those principles and observations of Lord Fraser, Lord Scarman and Thorpe LJ, I accept the opinion of the guardian and of C's legal team that he is of sufficient understanding and intelligence to enable him to understand fully what is involved in him living at the unit and the restrictions which are imposed upon. I am satisfied, on the totality of the evidence before me, that he not only understands those matters but he also understands why they are necessary and why and how they benefit him, although he may from time to time find the pressures of living so closely a supervised and restricted life difficult to bear. He is, in my judgment, Gillick competent.
55. I am wholly satisfied that C is capable, in law, of consenting to his confinement at the unit.
56. For the following reasons and notwithstanding the matters set out above, I am satisfied and find that C does consent to his confinement at the residential unit:

a. I would be surprised if a 15-year-old young man did not occasionally act as C has acted when living under such close supervision with such invasive restrictions to the everyday life that would be lived by a 15-year-old young man;

b. C consents to his living circumstances to a degree which amounted to him consenting to those restrictions which result in his confinement within the meaning of and satisfying the objective criteria of limb one of Storck;

c. whilst he has from time to time breached the house rules, and has, for example, left the unit without permission, I note:

i) he has always returned to the unit of his own volition;

ii) he has never had to be returned by the police or under coercion; and

iii) he has never left the unit for a period of time that could amount to absconding from the unit.

57. If there was cogent evidence that C had regularly changed his mind about living at the unit or being the subject of the restrictions I have set out above, it may be that I would not satisfied that he had given full and genuine consent and would have been bound to conclude that he did not, as a matter of fact, consent to his confinement (e.g. he regularly absented himself from or absconded from the unit for lengthy periods of time). There is no such evidence.
58. What account should I take, as submitted by the Official Solicitor, of the real risk that C may at some future point withdraw his consent? If I was satisfied that C's consent was a ruse and he would withdraw the same the moment the court case was concluded, it is likely I would not have concluded that he had not given a valid and genuine consent to his confinement. Once, however, I am satisfied that he had given a valid consent, the fact that he may withdraw that consent, at some point in the near future, does not in any way negate the valid consent he gave nor does it negate the legal consequences of that consent.
59. By way of analogy, in the context of the Mental Capacity Act 2005 the fact that a capacitous person may or, indeed, is likely to, lose capacity to make a decision about his life at some future point does not and cannot, as a matter of law, negate the fact that he currently has that capacity.
60. I readily recognise there is a risk that I am wrong to conclude that C has given a valid consent. Against that risk must be balanced the potential benefits to C of the court having found him to be Gillick competent, to have found he understood the issues resulting in his placement at the unit and the reasons for his confinement there and having accepted his word that he agreed to stay there and to abide by the restrictions. In my judgment those benefits include C feeling empowered to take control of his life, to continue to engage with the staff in a meaningful way and to improve his prospects of a leading a fulfilling and rewarding future life. These are powerful factors in support of my taking the risk I have identified.
61. Thus, notwithstanding his occasional breaches of the 'house rules' or his expressions to staff of discontent with one or more of the restrictions to which he is subject, I am satisfied that C has given a valid consent to his confinement at the unit.
62. Is the use of the inherent jurisdiction to authorise a deprivation of liberty Art. 5 compliant? In light of my conclusion that C consented to his placement and confinement at the unit and therefore I did not need to exercise the court's powers under the inherent jurisdiction, the question in this case is academic.
63. In the circumstances, and with all due respect of Ms Butler-Cole's helpful submissions, I confine myself to noting what the President said in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam) [2007] 2 FLR 1083, at para 16:

"It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit. It is equally clear that the court's powers extend to authorising that person's detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there: see Norfolk and Norwich Healthcare (NHS) Trust v W [1996] 2 FLR 613 (adult), A Metropolitan Borough Council v DB [1997] 1 FLR 767 (child), Re MB (Medical Treatment) [1997] 2 FLR 426 at page 439 (adult) and Re C (Detention: Medical Treatment) [1997] 2 FLR 180 (child)."

And in the case of X (A Child) and Y (A Child) (Rev 1) [2016] EWHC 2271 (Fam) [2016] 3 WLR 1718, where he said at paras 48 & 49:

"Since, as I have already observed, an order placing a child in secure accommodation involves a deprivation of liberty, and thus engages Article 5 of the Convention, any judge making such an order in exercise of the inherent jurisdiction must ensure that both the substantive and the procedural requirements of Article 5 are complied with.

Wall J was alert to this (I can vouch for the fact that he had been referred to the Strasbourg jurisprudence even although he did not refer to it explicitly) when he said this in Re C, pages 197-198:

" … the following considerations should be borne in mind by the court when deciding whether, and if so on what terms, to make an order under the inherent parens patriae jurisdiction directing the detention of a child in a specified institution …

(2) The child's parents should be involved in the decision-making process and must be given a fair hearing by the court.

(3) Any order the court makes must be based upon and justified by convincing evidence from appropriate experts that the treatment regime proposed

(a) accords with expert medical opinion, and

(b) is therapeutically necessary.

(4) Any order the court makes should direct or authorise the minimum degree of force or restraint, and in the case of an order directing or authorising the detention of the child the minimum period of detention, consistent with the welfare principle.

(5) Any order directing or authorising the detention of the child should

(a) specify the place where the child is to be detained,

(b) specify (i) the maximum period for which the detention is authorised and, if thought appropriate, (ii) a date on which the matter is to be reviewed by the court, and

(c) specify, so far as possible, a place whose location imposes the minimum impediments on easy and regular access between parents and child.

(6) Any order directing or authorising the detention of the child should contain an express liberty to any party (including the child) to apply to the court for further directions on the shortest reasonable notice.

(7) Any order directing or authorising the detention of the child should, so far as practicable, contain supplementary directions designed

(a) to facilitate easy and regular access between parents and child, and

(b) to provide the same safeguards for the child and the parents as they would have if the child were detained in accordance with some analogous statutory regime …"

64. I respectfully agree.
65. Accordingly, I am satisfied that the use of the inherent jurisdiction to authorise the deprivation of liberty of a child or young person is compliant with the procedural requirements of Art 5.

Conclusions

66. The nature of the placement and constant supervision of C when in the unit and when at school and the requirement that he may only leave the unit with permission and under supervision, lead me to be entirely satisfied that limb one of Storck is established. C is confined to a restricted place for a not negligible length of time.
67. On the basis that C is Gillick competent, I am satisfied that he can give a valid consent in law to his confinement at the unit.
68. I recognise and accept that C has and will seek to push the boundaries of the restrictions placed upon him, he has and will seek to object or complain about some elements of the restrictions placed upon him and he has, and he may well in the future, occasionally breach the house rules.
69. Nevertheless, I am satisfied that:

a. Limb one of Storck is established;

b. C can in law consent to his confinement;

c. C does in fact validly consent to the same; and

d. therefore the issue of the court authorising his confinement under the inherent jurisdiction did not arise.

70. I concluded my ex tempore judgment by making the following comments to C:

"C's placement in the unit has and will be for the foreseeable future in his best interests. He has clearly benefited from his placement there, as I believe he has recognised. He has established a good working relationship with the staff. I hope C does not interpret my decision as giving him free reign to do what he likes; I very much hope he will continue to work cooperatively with the staff at the unit for his long-term future benefit.

I do not intend what I am about to say to be seen as a threat by C, but he must understand that were he not to cooperate or were he to withdraw his consent to his placement, it is inevitable that the local authority will take action and make further applications to the court to secure his compliance. That said, I wish C all the very best for his future."

Note 1   P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council [2014] UKSC 19    [Back]

Note 2   Regulation 3 provides that ‘Accommodation in a children’s home shall not be used as secure accommodation unless it has been approved by the Secretary of State for such use and approval shall be subject to such terms and conditions as he sees fit.’    [Back]

Note 3   [2012] ECHR 732    [Back]

Note 4   For example: Re E (A Minor) [1993] 1 FLR 386    [Back]