Blog: Deprivation of Liberty Orders

Whilst a person can be deprived of their liberty at any age and in any place, there are certain rules and regulations in place when children or young persons are being deprived of their liberty.

There have been two recent cases which set out the law and provide guidance to a Local Authority when it seeks to place restrictions upon a child in its care.  The first is T (A Child : Care Order : Beyond Parental Control : Deprivation of Liberty : Authority to Administer Medication) [2017] EWFC B1.  This case was decided by Darren Howe QC (sitting as a Recorder) who authorised the Local Authority to deprive the child of his liberty in a residential placement on the basis it was necessary to do so to keep the child safe and to prevent him causing harm to himself or to others.  

The starting point is Article 5 ECHR which provides that everyone has the right to liberty and security of person.  The test for Deprivation of Liberty has been defined by the Strasbourg case of Storck –v- Germany [2005] 43 EHRR 96.  The test is threefold:  

1. Is there confinement in a particular or specific place for a not negligible length of time?  
2. Is anybody able to consent to the confinement?  A person with parental responsibility (PR), but not a Local Authority with PR can consent to a confinement on behalf of a child who is not Gillick competent.     
3. Is the State responsible for the confinement?  

The second recent case is Re: A-F (Children) [2018] EWHC 138.  This was a Family Division case heard by President Munby (as he was then) and involved his hearing seven test cases regarding the interface between care proceedings and Article 5 ECHR.  All the children ranged between eleven and sixteen and each child had varying mental health conditions such as severe autism and learning difficulties.  Various restrictions had therefore been placed upon their liberty ranging from varying degrees of supervision to secure accommodation.  In the previous case of P –v- Cheshire West & Chester Council [2014] UKSC 19, the court had formulated the test for confinement as comprising two components, namely, “complete supervision and control” and “not being free to leave”.  The following guidance was given by President Munby :

1. Whether the placement of a child involves a confinement will depend on the actual circumstances of the child, comparing the relevant child with the notional circumstances of the typical child of the same age, station, familiar background and relevant maturity who is free from disability.   A person with PR (but not a Local Authority with PR) can consent to a confinement on behalf of a child who is not competent and otherwise, the President provided a “rule of thumb” test as follows :

1. A child aged ten, even if under pretty constant supervision, is unlikely to be “confined” for the purpose of the Storck test.

1. A child aged eleven, if under constant supervision, may, in contrast be so “confined”, though the court should be astute to avoid coming regularly to such a conclusion.

1. A young person aged sixteen, and above must be assumed to have capacity unless it is established that they lack capacity under Section 1(2) Mental Capacity Act 2005.  If a young person lacks capacity, a person with PR (not a Local Authority with PR) can consent to their confinement on their behalf.   If valid consent is provided, there can be no deprivation of liberty and Article 5 ECHR is not engaged.  

1. If valid consent is absent, any confinement which would amount to a deprivation of liberty needs to be authorised by the State.  

1. Any application to the court should be made where the circumstances in which the child is, or will be, living constitute, at least arguably a deprivation of liberty.  The application should be made to the Family Division and the child must be made a party to the proceedings and have a Guardian appointed to represent his or her best interests.   If the child is of an age to express his or her wishes and feelings, he or she should be permitted to do so to the Judge in person if that is what the child wants. 
    
2. Whenever a confinement has been authorised by the court, the Local Authority will need to carry out regular reviews and there must be a review by a Judge at least once every twelve months. 

In any case which involves a potential deprivation of liberty of a child over the age of ten, the court will need to consider whether there is an abnormal level of curtailment of freedom and the reasons for this.   Expert evidence such as a report from a child and adolescent psychologist or psychiatrist is likely to be needed.  Deprivation of freedom may mean locks on external or bedroom doors, constant supervision within the home, exclusion from certain areas, inability to go out into the community independently, supervision at school, use of medication or restraint techniques.

If you require advice on any related issues, or any area of Family Law, please contact the author of this article, Marta Lyall, (email: ml@familylawgroup.co.uk).