England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
AND IN THE FAMILY COURT
AND IN THE MATTER OF PX

		Sessions House Lancaster Road, Preston PR12PD
		21/09/2022

HIS HONOUR JUDGE BURROWS:

INTRODUCTION

1. On 2^nd September 2022, I gave an extempore judgment in this case. It was specifically directed at PX's parents. For reasons that will become obvious, it was important for me to explain to them the decision I had made, and to make it clear that nothing I said, and nothing any of the other participants in this case have said, should in any way be interpreted as criticism of them. On the contrary, everyone, myself included, admire their love and devotion to their son and the difficult decisions they have made over his care and residence, which have placed his interests at their centre.
2. In view of the issues raised, however, as well as the detailed and focused written and oral arguments I received, the two issues that I have had to resolve where the authorities are not all aligned, and the fact that I authorised the deprivation of PX's liberty, I promised expanded written reasons.
3. As it happens, after the hearing but before this judgment was handed down, my attention was drawn to an authority only very recently handed down that had a material impact on the judgment I had delivered.
4. This is my definitive judgment.

BACKGROUND

5. This case is about PX. He is 15 years of age. He will be 16 in two months' time. For present purposes there is no need for me to go into great detail as to the physical and mental health challenges he has. Suffice to say he has ADHD, learning disabilities, and suffers frequent epileptic seizures every day. For the seizures, PX needs to take a high level of medication.
6. Unfortunately, PX is also prone to act in a way that is difficult to manage, but which, if unmanaged would lead him to suffer harm, as well as potentially harm others.
7. As PX grew up in his parent's care he became harder for them to care for. I hesitate to use the word "manage" because it tends to dehumanise the object of the management. However, I will quote the portion of the social work evidence Mr Jones quotes in his skeleton argument in order to give a flavour of the difficulties the parents faced in trying to care for PX:

"…..[he] did not understand the impact his behaviour has on his family. This was unpredictable and impulsive. When [PX] was 'heightened' at home, he systematically attacked and physically hit family members especially his mother and younger sibling. This also shifted to his father. [PX] lashed out, head banged, hit himself, grabbed others, pulled family members' hair, squeezed people tightly around the neck and was destructive towards items in the family home. [PX] also screamed, shouted, intimidated others, bit others and hurled items and objects across the room".

8. Mr Jones also helpfully quotes the portion of the social work evidence that summarises PX's ongoing "challenging behaviours":

Hitting others around him

Scratching

Refusing tasks and instructions

Screaming

Throwing objects

Dropping to the floor

Trying to abscond

Pulling other people's hair

Spitting at others

Causing damage to property

Placing harmful objects in his mouth.

9. In August 2021, PX's parents made what must have been a very difficult decision for them. They agreed with the local authority that PX ought to be accommodated and cared for by the local authority.
10. In very simple outline, the move has benefitted him. He is thriving in the place where he now lives and subject to his present care plan. The care plan involves restrictions that amount to an objective deprivation of PX's liberty.

THIS APPLICATION

11. These proceedings arose because there was a dispute as to whether PX's arrangement was subject to s. 17 of the Children Act 1989 ("the Act") or s. 20 of the Act. That dispute led, in turn, to the local authority seeking a care order in respect of PX. Finally, an application was made under the inherent jurisdiction of the High Court to authorise PX's deprivation of liberty.
12. The matter came before the Designated Family Judge for Lancashire, Her Honour Judge Bancroft on 8 August 2022. She issued case management directions and listed the matter before me on 2 September 2022. HHJ Bancroft declined at that time to make an interim care order.
13. The issues I had to determine were:

1) Is PX subject to s. 17 or s. 20 of the Act?

2) Should a care order be made in respect of PH? This issue was subdivided into two sub-issues:

i) Was the threshold met for a care order?

ii) If it is met, should the care order be made, in any event?

3) Since PX is under 15, and his parents agree to his care plan and the consequential deprivation of his liberty, is Article 5 of the European Convention engaged, or can parental consent act to remove the subjective requirement?

14. Fortunately, by the time the hearing began, the first issue had been resolved by the parties, subject to the Court's agreement. The parties agreed that PX is subject to s. 20 of the Act. This is not an issue I need to determine. I agree that PX is clearly subject to s. 20. If one applies the judgment of Baroness Hale in R (on the application of G) v London Borough of Southwark [2009] UKHL 26, where she cited the staged approach put forward by Wall, LJ in R (A) v Croydon LBC [2008] EWCA Civ 1445 to the facts of this case, the inescapable conclusion is that PX is accommodated under s. 20 of the Act.
15. It seems the reason the local authority brought care proceedings in the first place is because of their concern that it may be improper or impermissible to use s. 20 for a protracted period of time. That brings me to the second issue namely whether a care order should be made in this case.

CARE ORDER?

16. The Court's jurisdiction to make a care order is contained in s. 31 of the Act which deals with the threshold that needs to be reached in order for the State to have authority to interfere with the exercise of the responsibility parents have over their children. The relevant provisions are:

Care and Supervision

(1) On the application of any local authority or authorised person, the court may make an order—

(a) placing the child with respect to whom the application is made in the care of a designated local authority; or

(b) putting him under the supervision of a designated local authority F1. . ..

(2) A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child's being beyond parental control.

17. The Interim Threshold document dated 6 July 2022 pleads that "there are reasonable grounds for believing that at the relevant time, on 27 August 2021, the child had suffered significant harm or was likely to suffer significant harm, the harm or likelihood of such harm being attributable to him being beyond parental control".
18. The facts relied upon recited most of what I have outlined above concerning PX's challenging behaviour and various mental health conditions. It then carried on:

"6.4 [PX] continues to experience complex needs arising from his disabilities which manifests into challenging behaviour which is difficult to manage both inside and outside of the family home.

6.5 The parents have been unable to manage [PX]'s behaviour, and this has impacted upon the family's functioning and emotional wellbeing. [PX]'s younger sister often resorted to isolating herself in her bedroom due to [PX]s behaviour.

6.6 The parents are unable to safely meet [PX]'s complex needs and requested that he be accommodated by the Local Authority"

19. There are three issues I have to deal with in relation to the application for a care order:

(1) Can the threshold be met on the facts pleaded?

(2) In the light that no fault is alleged against the parents, can a care order be made?

(3) If the threshold is met, and an order could be made, should an order be made in this case?

20. I shall deal with issues (1) and (2) together.
21. After I circulated the draft of this judgment to counsel for their corrections, I was asked to make my views on these issues clearer. I will endeavour to do so, although I will record that I did not hear lengthy submissions on these, and, as a matter of fact, my ultimate decision was reached by a separate route as well.
22. On the first issue, I heard argument from Mr Rothery that the threshold cannot be met because the relevant time for the threshold is the date of the application or when protective measures were taken. He argues that no protective measures were taken before the issue of proceedings. There were no child protection concerns at the time- indeed, PX was never on a child protection plan- hence a care order could not be made in this case because the threshold is plainly not met. As the documentation makes clear- he submits, and I agree- PX was accommodated because he as a child in need and not because there were child protection concerns.
23. In my judgment, at the time the s. 20 agreement was signed, which was 27 August 2021, PX had not suffered significant harm. Furthermore, he was not at that stage likely to suffer significant harm as a result of being beyond parental control. That is because his parents decided that PX needed a care regime that the local authority could provide. If they had kept PX in their control and had reached the point where they could no longer care for him and keep him safe and were not willing to ensure others provided that care, then he would have been at risk of significant harm as a result of being out of parental control.
24. But they did not do that. They exercised their parental responsibility and did what was best for PX by allowing the Local Authority to look after him. In no meaningful sense of the words could there be said to be 'child protection concerns'. Nor could the entering into the s. 20 agreement in this case be said to have involved in any meaningful sense the introduction of "protective measures".
25. The second point concerns a trilogy of cases concerning whether, for a care order to be made on the grounds that the child is beyond parental control there needs to be some failure on the part of the parent for the order to be made.
26. As argued before me, in Re P (Permission to Withdraw Care Proceedings) [2016] WL 212893, HHJ Redgrave (sitting as a judge of the Family Court), the Court determined that for threshold to be reached there must be some failure on the part of the care giver (the parent). In Re K (Post Adoption placement breakdown) [2012] EWHC 4148 (Fam) HHJ Bellamy, sitting as a High Court Judge, and Re T (A Child)(Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) [2018] 1 WLUK 14, Darren Howe, Q.C. sitting as a deputy High Court Judge, it was said there need be no such failure.
27. It seems to me that the starting point has to be the meaning of the plain words of the statute. The term "attributable to" "connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care or the child's being beyond parental control on the other" (see Lancashire County Council v B [2000] 1 FLR 583, Lord Nicholls of Birkenhead). In his skeleton argument, Mr Jones points out that whereas s. 31(1)(b)(i) specifies the reasonably expected level of parenting as being relevant, s. 31(1)(b)(ii) does not. If Parliament had intended the level of parenting to be relevant to both, the same language would have been used for both.
28. HHJ Bellamy put the matter this way:

[75] In my judgment it is clear from [LCC v B] that even if a child is likely to suffer significant harm as a direct result of a disorder which affects that child's behaviour, if the consequent behaviour is such that a parent is unable to control the child then the child's being beyond parental control is, at the very least, a contributory cause of the likelihood of future harm"

29. Darren Howe, Q.C. agrees and puts it this way, on the very difficult facts of his case:

. [90] In my judgment it is immaterial whether a child is beyond parental control due to illness, impairment or for any other reason. The court simply has to consider if, on the facts, the child is beyond the control of the parent or carer. If that condition is satisfied, the court then has to determine if the child is suffering or is likely to suffer significant harm as a result of being beyond the control of the parent. If the answer to that 2nd question is 'yes', then section 31(2)(b)(ii) threshold is, in my judgment satisfied.

30. These two High Court decisions bind a Family Court Judge at Circuit Level. Even a judge sitting in the High Court has to be mindful of the principle of stare decisis. I am extremely uneasy about morally and practically blameless parents being made the subject of care proceedings and potentially losing exclusive parental responsibility as a result. I am also far from satisfied that the parents of disabled children, should be at risk of their child being placed under care orders where there is nothing about the quality of the care they have given that can be criticised, and the only difference between them and other parents is the disability of their child.
31. All that having been said, I feel compelled to follow the clear wording of the statute and the interpretation given to it by HHJ Bellamy and Howe, Q.C.
32. However, that is not the end of the matter. I see great force in Mr Rothery's first point. Many cases of the sort considered above, and this case, involve difficulties experienced by parents struggling to manage the issues raised by their children's condition. Sometimes there is a disagreement or dispute between the parents and the authorities precipitating the involvement of the State. However, in this case, there is no dispute. The parents recognised the need for their son to be cared for by a professional team of carers in a setting dedicated to his needs. At that point they called upon the local authority to provide that care and to meet his needs. That is what has happened, and PX is now doing well.
33. In my judgment, in the circumstances of this case, where parents not only recognise that they are unable to manage their child due to his disabilities but call upon the local authority to meet his needs, it is impossible to see how the threshold is met. I am reminded of Leicester City Council v AB [2018] EWHC 1960 (Fam), where a mother developed an illness that prevented her from providing care for her child. As Keehan, J. said the threshold was not met where she had done "what any reasonable parent would do" and arranged for the local authority to care for the child. Although the factual scenario is different in this case, I cannot help but describe what these parents have done as what any reasonable parent would do.
34. Furthermore, if the relevant date for threshold is the date of issue, namely 6 July 2022, it cannot possibly be made out. PX is under the care of the local authority. If he is at risk of suffering significant harm at the present time (and he is not), that cannot be due to him being beyond his parents' control.
35. I am further fortified in my view by the actual reason care proceedings were commenced. I am satisfied that proceedings were brought because the local authority believed it was unlawful for the child to be accommodated pursuant to s. 20 of the Act for the long term. That is not only an improper reason for bringing care proceedings, but also an inaccurate interpretation of the law. As Ms Harvey for the local authority accepted, there is no time limit for the use of s. 20, and there was no need for care proceedings to be issued in this case in any event: see Baroness Hale in Williams v Hackney LBC [2019] FLR 210.
36. If I am entirely wrong on that, and the threshold may have been met in these proceedings, I would not have made a care order in this case in any event. It seems clear to me that where a child is being accommodated under s. 20 in agreement with the parents, the parents have a child focused approach to the care plan and work well with the local authority there is no need for an order at all. It certainly is not in the child's welfare interests for there to be one.
37. For all those reasons, I indicated to the local authority that I had no intention of making a care order and I granted them permission to withdraw their application, which they did.

DEPRIVATION OF LIBERTY

38. Is PX subject to restrictions that amount to a deprivation of liberty so that the Court needs to authorise those restrictions? This apparently simple question raises some legal ambiguity requiring me to give my reasons for the decision I have made.
39. There is a considerable body of case law both at domestic level and in the European Court of Human Rights on the proper interpretation of Article 5 of the Convention, from the which the phrase "deprivation of liberty" is derived.
40. As Mr Jones points out in his skeleton argument, there are three component parts to a deprivation of liberty: objective (is the person subject to restriction on his movement that amounts to deprivation of liberty?); subjective (does/can P consent to those restrictions?); and finally, are the restrictions imputable to the State?
41. The first and last conditions pose little difficulty, indeed the last is clearly met and I shall not mention it again.
42. The objective requirement for a deprivation of liberty within a care setting in the domestic law of this country has been definitively settled by the Supreme Court in Cheshire West and Chester Council v P [2014] UKSC 19. The 'acid test' is whether the person is under continuous supervision and control and not free to leave the place in which they reside. This definition includes the extent to which the detained person must be permitted to leave and is then under control when he does leave and is required to return by those controlling his movements.
43. There is no doubt that PX is objectively deprived of his liberty. Again, quoting Mr Jones, he is subject to the following restrictions:

1:1 supervision and support in the placement and the community

He has support with all aspects of his care including personal care and independent living skills

His medication is managed and administered for him

A harness is used within vehicles which physically restrain him and prevents him from interfering with the driver

Doors to the premises are locked- front and back doors and side gate and there are window restrictors.

There are waking staff as well as sleeping staff at night

Restraint is used as a last resort.

44. Cheshire West concerned adults. In the Supreme Court there was discussion as to whether the acid test ought to be modified when considering restrictions imposed on those who were children. This is the one aspect of the approach taken by the Court of Appeal (see [2011] EWCA Civ 1257) in Cheshire West that survived the Supreme Court- namely that there needed to be a modified comparator when considering a child.
45. That test is properly summarised in Mr Jones skeleton: are the restrictions imposed on PX beyond what one would expect to be imposed on an average child of 15, without mental health issues and challenging behaviour? The comparator is not "a 15-year-old with the same characteristics as PX" so as to avoid the test being discriminatory on the grounds of disability-as the test originally propounded by the Court of Appeal had been.
46. I agree with that analysis. Objectively speaking PX is deprived of his liberty.
47. There was initially some disagreement as to whether as a child of 15 PX needed the Court to authorise his deprivation of liberty, or whether his parents could give valid consent on his behalf. It is agreed by all the parties that PX lacks capacity to make decisions about residence and care for himself (to use the language of the Mental Capacity Act 2005)- and he is not Gillick competent (to use the language of the common law for under 16s).
48. There is some uncertainty on the law here. The Supreme Court in Re D [2019] UKSC 42 found that a parent of a child of 16 is not able validly to consent to that child's objective deprivation of liberty. It is still not entirely clear whether Re D applies without more to children under the age of 16, like PX. In AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam)- Keehan, J. considered that parents could give valid consent for their child to be deprived of his liberty (as he had done in Re D [2015] EWHC 922 when D was 15). This approach for those under 16 had been left unaddressed.
49. At the time of the hearing, no one referred me to the very recently decided case of Lincolnshire County Council v TGA & others [2022] EWHC 2323 (Fam), which, at the time of the hearing had not been published on Bailii. I was faced therefore with a choice of deciding that PX's care plan had to be approved by the Court or to leave the matter to his parents, who approve it without the benefit of that case.
50. I was and remain uneasy about an approach that leaves the use of severe restrictions that go beyond what a 15-year-old would expect to be subjected to, to the discretion of the child's parents. Or, to put it another way, to place such a terrible responsibility on the shoulders of parents. I was encouraged in that position by Baroness Hale in Re D. She emphasised the reason for Article 5 protection: to avoid arbitrary action, abuse or at the very least acting to restrict a child in a way that does not serve his best interests. Without the Article 5 safeguards there is "no way of ensuring that those with parental responsibility exercise it in the best interests of the child….".
51. Those comments do not apply expressly to under 16s. However, the guardian urged me to use a "logical" application of what Baroness Hale says, and to extend protection to PX who is 15.
52. On the other hand, the passage I quoted from Hale, B. is the very issue that concerned Keehan, J in Re D (emphasis added)

[58] 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.

[59] 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?

[60] 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?

[61] 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."

53. Having reflected on this, and in the absence (I thought) of a properly considered High Court judgment dealing with the issue of under 16-year-olds post Re D, I was minded to follow the clear logic of Baroness Hale. I had no hesitation in deciding that the restrictions imposed on PX should attract full Article 5 protections, which means a Court review, even though he is only 15 and his parents would consent to them on his behalf if they could. These are considerable restrictions, and they go far beyond what any parent should be called upon to approve or authorise. In my view, there is always a danger that good and devoted parents such as PX's might simply follow the advice given to them by clinicians and social workers who are, after all, agents of the State.
54. However, I am now aware of the very recent judgment of Lieven, J in the Lincolnshire case. In that judgment, Her Ladyship analysed the caselaw having benefitted from submissions on the cases at both domestic and ECHR level. That was not the case in PX, where the parties agreed the Court should authorise and I did not hear extensive argument.
55. Lieven, J. concluded that parents of those who are under 16 may authorise the objective detention/deprivation of liberty of their children without the need for Court determination or authorisation.
56. This means that the Court will only become involved if there is a dispute between the parents and the local authority or other State body, such as the NHS, or between the parents themselves, as to what is in the child's best interests. As I understand it, Article 5 is not engaged unless and until the matter is referred to a Court. At that stage if, and only if the Court then concludes that it has to override the parent's decision because it is not in the child's best interests, is Article 5 engaged. That is because it is the Court that is authorising the State detention of the child rather than the parents, and the subjective limb in Article 5 is present.
57. Consequently, unless I were to consider Lieven, J's judgment to be "plainly wrong" (see Huddersfield Police Authority v. Watson [1947] K.B. 842, 848, per Lord Goddard C.J.) I should follow it. As I have said that judgment was the product of a hearing at which the relevant caselaw was considered and Her Ladyship heard submissions from both sides. This is an area of law in which there is no need for further ambiguity. I follow the Lincolnshire case. Contrary to my extempore judgment, PX's parents are entitled to use their parental responsibility to consent to his deprivation of liberty. The court has no business interfering with their exercise of parental responsibility.
58. I therefore dismiss the application to invoke the inherent jurisdiction of the Court.
59. Ironically, of course, had I concluded that PX ought to be subject to a care order, I would have been required to authorise his deprivation of liberty. The law, however, is that where parents agree with statutory bodies as to what care provision is in the best interests of their under 16 year old child, there is no place for the Court to intervene as a separate guarantor of the human rights of the child.
60. All that being said, had I been required to make such a decision in this case, I would have approved the the restrictions as necessary, proportionate, and in PX's best interests.

THE FUTURE

61. There was little dispute between the parties as to what should happen next.
62. On PX's sixteenth birthday the matter must pass to the Court of Protection for future authorisation.
63. That completes this judgment.