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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AB (A Child : deprivation of liberty), Re  EWHC 3125 (Fam) (28 July 2015)
Cite as:  WLR 1160,  1 WLR 1160,  Fam Law 1464,  WLR(D) 432,  EWHC 3125 (Fam),  2 FLR 601
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B e f o r e :
|A LOCAL AUTHORITY||Applicant|
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|D & Ors.||Respondents|
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MS. K. DANTON appeared on behalf of the First Respondent.
MS. C. DILLON appeared on behalf of the Second Respondent.
MR. N. GOODWIN QC (instructed by Brethertons LLP) appeared on behalf of the Third and Fourth Respondents.
Crown Copyright ©
MR. JUSTICE KEEHAN:
(1) Whether AB is deprived of his liberty at X.
(2) If so, are the parents and/or the local authority entitled to consent to the same?
(3) If not, whether the court will sanction the deprivation of liberty and, if so, under what provision, power or jurisdiction?
(4) Whether it would be appropriate to give guidance on the approach to, and conduct of, similar cases.
"Staff must be aware of where AB is at all times. AB should be checked regularly. Staff must be authorised to work alone with AB. AB must never be left alone with another resident."
He is also under observations every 15 minutes. He takes his medication under supervision. AB is not allowed to leave the unit, e.g. to go to school, unaccompanied and is closely supervised when out of the unit. On public transport, he is watched at all times. If he behaves badly when out, and despite warnings, he continues to behave badly, he must be immediately returned to the placement. If he were to leave the placement unaccompanied, staff would call social services and the police to assist with his return. The front door is locked at night and, if AB leaves his room, staff must redirect him back to his room unless he wants a drink or to go to the toilet. The social worker concluded:
"AB is under the continuous supervision of staff, who are aware of his whereabouts at all times. AB is residing in a care setting, where he is not free to leave unsupervised. He is also not able to contact his family independently. All behaviour that is perceived to be challenging is managed with verbal redirection. AB is also on an ongoing prescription of sedative medication which alters his behaviour and is a form of chemical restraint."
"AB is not able to leave the placement without a worker accompanying him. This is due to AB's vulnerabilities in terms of identifying risk and keeping him safe and the restrictions are necessary and proportionate for ensuring AB's safety, welfare and development, as they would be for any other child of his age with his level of need."
(1) Staff must be aware of where AB is at all times. AB should be checked regularly. Staff must be authorised to work alone with AB. AB must never be left alone with another resident.
(2) Staff should only allow AB to undertake activities outside the unit if his behaviour warrants it. If staff are in doubt about taking AB out, due to concerns they may have in terms of his mood or behaviour at that time, they should immediately inform him of this, clearly explaining their reasons to him, highlighting what their expectations are, before this can be accommodated. Before exiting the unit for activities, staff should ensure they have clearly voiced their expectations in terms of his behaviour while out in the local community. If AB displays any negative behaviour while out on an activity, staff should ask him to stop and give him the opportunity to amend his behaviour.
(3) AB is only to be taken on public transport if he is calm and settled. Staff are to be clear with him where they are going and what transport they are getting on with him. Staff are either to sit beside AB or behind him but not in front of him. Staff would be able to see him at all times. AB can hold his travel ticket while out with staff. If his behaviour escalates, then he is to return with staff to the unit. If the staff cannot do this alone, then they are to call the unit and support will be sent if possible. AB is known to occasionally exit his bedroom during the night. In the event of him doing this, staff should, first, identify the reasons for him doing so. If he states he requires either the toilet or a drink, staff must allow him the opportunity of accessing either. Staff must remind him of the time, redirecting him back to his room by encouragement in a firm tone of voice. If AB refuses, staff should ask him again in a firm tone of voice. If he still fails to follow staff directions, staff should positively ignore him but remind him of the time every ten minutes for no more than 30 minutes. If this continues, AB should be informed that a sanction will be issued because of his failure to comply with the request made.
(4) If AB is in his room or the bathroom then staff can leave the room for a couple of minutes. While AB is in the bath, staff can lock the door from the outside and sit outside and check on him visually and verbally during bath time.
"The nature and degree of his disabilities are such that his cognitive abilities, in particular, his ability to process new information, recall it, use it and weigh it up, are impaired."
"The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras.74 and 89, confirmed in Stanev, paras.117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of a lack of valid consent; and (c) the attribution of responsibility to the state.
38. ... the difference between restriction and deprivation of liberty is one of fact and degree in which a number of factors may be relevant. Simply asking whether a person is 'confined' is not enough except in obvious cases. The 'starting point' is always upon the 'concrete situation' of the particular person concerned and 'account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question' ... The presence or absence of coercion is also relevant. Thus there is no single 'touchstone' of what constitutes a deprivation of liberty in this or any other context."
Later, at para.45:
"In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.
46. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.
49. The answer, as it seems to me, lies in those features which have consistently been regarded as 'key' in the jurisprudence which started with HL v United Kingdom: that the person concerned 'was under continuous supervision and control and was not free to leave'. I would not go so far as Mr Gordon QC, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty.
50. The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the person's compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach."
"If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions."
"... when I refer to leaving the X home and the Y home, I do not mean leaving for the purpose of some trip or outing approved by SCC or by those managing the institution; I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses ..."
"The protection of Article 5 of the Convention and the fundamental right to liberty applies to the whole of the human race; young or old and to those with disabilities just as much to those without. It may be those rights have sometimes to be limited or restricted because of the young age or disabilities of the individual but 'the starting point should be the same as that for everyone else', per Baroness Hale: Cheshire West at paragraph 45.
The majority in Cheshire West decided that what it means to be deprived of liberty is the same for everyone, whether or not they have a physical or mental disability: per Baroness Hale in Cheshire West at paragraph 46.
I accept the essential ratio of Cheshire West does not apply to the circumstances of this case. Nevertheless, in my view, the acid test definitions of a deprivation of liberty apply as much to D as they did to the subjects of the appeals in Cheshire West.
The essential issue in this case is whether D's parents can, in the proper exercise of parental responsibility, consent to his accommodation in Hospital B and thus render what would otherwise be a deprivation of liberty not a deprivation of liberty (ie the 2nd limb in Cheshire West is not satisfied)."
Deprivation of liberty consent
"When D attains the age of 16 his future accommodation and any deprivation of liberty involved will be matters for the Court of Protection to consider. The fact that a different regime and different considerations will apply once D has become 16 should not, in my judgment, affect the approach I should take during any period when he is not 16.
On the facts of this case I am wholly satisfied that D lives in conditions which amount to a deprivation of his liberty. He is under constant supervision and control. The fact that D enjoys residing in the unit in Hospital B, that he is comfortable there and readily seeks out and engages with members of staff are irrelevant factors when considering whether there is a deprivation of liberty. So too are the facts that the arrangements have been made in his welfare best interests and have been, and are, to his benefit. A gilded cage is still a cage.
D was admitted to Hospital B on the recommendation of his treating clinicians because of his autism and his other conditions. The fact that his parents were (understandably) struggling to cope with caring for him at home was but one factor which culminated in the clinical decision to informally admit him to the hospital.
I wish to pay tribute to D's parents who have throughout acted in what they considered to be in the best interests of their elder son. They have, at all times, paid the closest interest in his care at the hospital and they have worked in co-operation with the clinicians, staff and carers at the unit. They have attended, or at least one of them has attended, the periodic reviews held at the hospital.
When considering the exercise of parental responsibility in this case and whether a decision falls within the zone of parental responsibility, it is inevitable and necessary that I take into account D's autism and his other diagnosed conditions. I do so because they are important and fundamental factors to take into account when considering his maturity and his ability to make decisions about his day to day life.
An appropriate exercise of parental responsibility in respect of a 5 year old child will differ very considerably from what is or is not an appropriate exercise of parental responsibility in respect of a 15 year old young person.
The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D's disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.
The parents of this young man are making decisions, of which he is incapable, in the welfare best interests of their son. It is necessary for them to do so to protect him and to provide him with the help and support he needs.
I acknowledge that D is not now cared for at home nor 'in a home setting'. His regime of care and treatment was advised by his treating clinicians and supported by his parents. They wanted to secure the best treatment support and help for their son. They have done so. It has proved extremely beneficial for D who is now ready to move to a new residential home out of a hospital setting. What other loving and caring parent would have done otherwise?
Those arrangements are and were made on the advice of the treating clinicians. All professionals involved in his life and in reviewing his care and treatment are agreed that these arrangements are overwhelmingly in D's best interests. On the facts of this case, why on public policy or human rights grounds should these parents be denied the ability to secure the best medical treatment and care for their son? Why should the state interfere in these parents' role to make informed decisions about their son's care and living arrangements?
I can see no reasons or justifications for denying the parents that role or permitting the state to interfere in D's life or that of his family."
The powers of the court
"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."
(1) Local authorities are under a duty to consider whether any children in need, or looked-after children, are, especially those in foster care or in a residential placement, subject to restrictions amounting to a deprivation of liberty.
(2) The Cheshire West criteria must be rigorously applied to the individual circumstances of each case.
(3) The comparison to be made is not with another child of the same age placed in foster care or in a residential home, but simply with another child of the same age.
(4) A deprivation of liberty will be lawful if warranted under statute; for example, under s.25 of the Children Act 1989 or the Mental Health Act 1983 or under the remand provisions of LASPO 2012 or if a child has received a custodial sentence under the PCCSA 2000.
(5) Where a child is not looked after, then an apparent deprivation of liberty may not in fact be a deprivation at all if it falls within the zone of parental responsibility exercised by his parents (see Re D). The exercise of parental responsibility may amount to a valid consent, with the consequence that the second limb of Cheshire West is not met. In those circumstances, the court will not need to make any declaration as to the lawfulness of the child's deprivation of liberty.
(6) Where a child is a looked-after child, different considerations may apply, regardless of whether the parents consent to the deprivation of liberty.
(7) Where a child is the subject of an interim care order or a care order, it is extremely unlikely that a parent could consent to what would otherwise amount to a deprivation of liberty. In those circumstances, a local authority cannot consent to a deprivation of liberty.
(8) The local authority must first consider whether s.25 of the Children Act is applicable or appropriate in the circumstances of the individual case. This will require an analysis of (1) whether any of the regulations disapply s.25, (2) whether the intended placement is accommodation provided for the purposes of restricting liberty and, thus, secure accommodation within s.25 and (3) whether the test set out in s.25.1(a) or (b) is met.
(9) If it is not, then the s.100(4) leave hurdle is likely to be crossed on the basis that any unlawful deprivation of liberty is likely to constitute significant harm.
(10) Irrespective of the means by which the court authorises the deprivation of a child's liberty, whether under s.25 or the inherent jurisdiction, the local authority should cease to impose such deprivation as soon as (1) the s.25 criteria are not met, or (2) the reasons justifying the deprivation of liberty no longer subsist. Authorisation is permissive and not prescriptive.