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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 >> London Borough of Lambeth v L (Unlawful Placement)  EWHC 3383 (Fam) (14 December 2020)
Cite as:  EWHC 3383 (Fam)
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B e f o r e :
| The Mayor and Burgesses of the London Borough of Lambeth
|- and -
|L (A Child by His Children's Guardian)
Mr Alan Inglis (instructed by Covent Garden Law) for the Respondent
Hearing dates: 16 October 2020
Crown Copyright ©
Mr Justice MacDonald:
"3.10... As stated previously, while it is my opinion that the levels of L's anger and aggressive behaviour mean that the use of reasonable physical restraint is at times justified in order to safeguard him and others, I am very concerned that this has happened, without first being subject to appropriate consideration by the court.
3.11 I am also concerned that the incident reports received suggest that L reported receiving an injury to his finger from a physical restraint which occurred in [X] House in March 2019 and in November 2019, a report from [Y] House suggested that L had a "bleeding lip" after an incident in the car on the way to school. Confirmation is required from the local authority that L received medical attention as a result of these injuries and that they were reported to the LADO for further investigation."
i) Prior to 3 September 2020 L was unlawfully deprived on his liberty (whilst Mr Kubeyinje states that this unlawful deprivation commenced on 28 January 2020, having regard to the matters I have summarised above, it would appear that the illegal deprivation of L's liberty by the local authority may well have commenced as early as January 2019).
ii) The fact that L's current placement commenced as an emergency placement did not absolve the local authority from making an application to the court for the appropriate order or orders.
iii) No early legal advice was sought by the local authority before the decision was made to place L in his current placement.
iv) At the time L was placed in his current placement there was no assessment undertaken by the local authority as to whether L's liberty was or would be deprived at that placement.
v) There was a highly regrettable delay in seeking the authority of the court to deprive L of his liberty.
i) A practice wide alert has been issued with respect to placements outside the jurisdiction and the need to follow appropriate procedures with respect to such placements.
ii) Arrangements have been made for training to take place for social workers, staff in the placement service, early help practitioners and business support and youth offending staff.
iii) The Weekly Bulletin will place an emphasis on the law concerning deprivation of liberty in order to ensure that all staff are aware of the need to consider whether a child is being deprived of their liberty and to ensure that this does not happen save in accordance with an appropriate court order.
iv) Training will occur to ensure that staff are aware of the checks that must take place before a placement that will deprive a child of his or her liberty can occur, including training on issues of deprivation of liberty arising in respect of children placed in residential homes and in residential schools.
v) A review meeting will take place between the local authority legal department and the placement team to learn lessons from the mistakes that were made in this case.
vi) The local authority Quality Assurance Team and the Children with Disability Team will review all children open to the latter team to ensure no child is at present deprived of his or her liberty without authorisation of the court, with this review extending thereafter to all children looked after by Lambeth Children's Services.
Right to liberty and security
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 on reasonable suspicion of having committed an 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 unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."
States Parties shall ensure that:
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action."
" Prima facie, therefore, article 5 protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty. All parties to this case agree that this means that a local authority which has parental responsibility for a child cannot deprive the child of his liberty without the authority of a court."
" I have referred already (paragraph 27(iv) above) to the relevant authorities; see also the Re X cases (In re X and others (Court of Protection: Deprivation of Liberty) (Nos 1 and 2) Practice Note  EWCOP 25,  EWCOP 37,  1 WLR 2454,  COPLR 674, on appeal In re X and others (Court of Protection: Deprivation of Liberty) (Nos 1 and 2)  EWCA Civ 599,  1 WLR 227,  COPLR 582). There is no need for me to embark upon either elaborate citation or exegesis, for on most points there was little difference at the Bar and the answers are in any event reasonably clear.
 General: A "confinement" of the kind I am here concerned with will be lawful if, as a matter of substance it is both necessary and proportionate, i.e., the least restrictive regime which is compatible with the child's welfare and, as a matter of process, has been authorised by a judge in the Family Division in accordance with the procedures identified in the authorities I have referred to in paragraph 46 above.
 Need to apply to the court: An application to the court should be made where the circumstances in which the child is, or will be, living constitute, at least arguably (taking a realistic rather than a fanciful view), a deprivation of liberty.
 What has to be approved: There is no need for the court to make an order specifically authorising each element of the circumstances constituting the "confinement". It is sufficient if the order (i) authorises the child's deprivation of liberty at placement X, as described (generally) in some document to which the order is cross-referenced, and if appropriate (ii) authorises (without the need to be more specific) medication and the use of restraint.
 Process: The key elements of an Article 5 compliant process can be summarised as follows:
i) If a substantive order (interim or final) is to be made authorising a deprivation of liberty, there must be an oral hearing in the Family Division (though this can be before a section 9 judge). A substantive order must not be made on paper, but directions can, in an appropriate case, be given on paper without an oral hearing.
ii) The child must be a party to the proceedings and have a guardian (if at all possible the children's guardian who is acting or who acted for the child in the care proceedings) who will no doubt wish to see the child in placement unless there is a very good child welfare reason to the contrary or that has already taken place. The child, if of an age to express wishes and feelings, should be permitted to do so to the judge in person if that is what the child wants.
iii) A 'bulk application' (see the Re X cases) is not lawful, though in appropriate circumstances where there is significant evidential overlap there is no reason why a number of separate cases should not be heard together or in sequence on the same day before one judge.
 Evidence: The evidence in support of the substantive application (interim or final) should address the following matters and include:
i) The nature of the regime in which it is proposed to place the child, identifying and describing, in particular, those features which it is said do or may involve "confinement". Identification of the salient features will suffice; minute detail is not required.
ii) The child's circumstances, identifying and describing, in particular, those aspects of the child's situation which it is said require that the child be placed as proposed and be subjected to the proposed regime and, where possible, the future prognosis.
iii) Why it is said that the proposed placement and regime are necessary and proportionate in meeting the child's welfare needs and that no less restrictive regime will do.
iv) The views of the child, the child's parents and the Independent Reviewing Officer, the most recent care plan, the minutes of the most recent LAC or other statutory review and any recent reports in relation to the child's physical and/or mental health (typically the most recent documents will suffice).
 Whether and to what extent new evidence (e.g. up-to-date reports) will need to be obtained, or whether reliance on existing evidence will suffice, must depend upon (a) the extent to which the existing evidence covers the various matters referred to above, (b) the age of the existing evidence (how up-to-date is it?) and (c) the extent to which there have been any significant changes since the existing evidence was prepared. The evidence from the guardian, which I envisage can often be quite short, will typically focus on the "confinement" and "deprivation of liberty" issues; unless there has been a very significant change in the child's circumstances, the application under the inherent jurisdiction should not be an occasion for re-opening the wider welfare issues previously determined in the care proceedings.
 The question has been raised whether a child's competency to consent to a "confinement" can properly and fairly be assessed by a local authority social worker. Whilst I would not wish to exclude evidence on the point from a social worker who feels properly qualified to express an opinion, it is plainly undesirable that the only evidence on the point should come from an employee of the local authority responsible for the "confinement". And one would, in any event, expect that if a child whose circumstances require a regime more restricted than that of a comparator contemporary is nonetheless said to have the capacity to give a valid consent, that proposition would normally be made good by evidence from either a child and adolescent psychologist or, depending upon the nature of the child's difficulties, a child and adolescent psychiatrist. I recognise that in putting it this way I am departing somewhat from what Keehan J said in A Local Authority v D, E and C  EWHC 3473 (Fam), para 44.
 Interface with care proceedings:
i) If, when care proceedings are issued, there is a real likelihood that authorisation for a deprivation of liberty may be required, the proceedings should be issued in the usual way in the Family Court (not the High Court) but be allocated, if at all possible, to a Circuit Judge who is also a section 9 judge. Ms Heaton and Ms Burnell suggest that thought should be given to amending the C110A form to enable the issue to be highlighted. I agree.
ii) Where care proceedings have been allocated for case management and/or final hearing to a judge who is not a section 9 judge, but it has become apparent that there is a real likelihood that authorisation for a deprivation of liberty may be required, steps should be taken if at all possible, and without delaying the hearing of the care proceedings, to reallocate the care proceedings, or at least the final hearing of the care proceedings, to a Circuit Judge who is also a section 9 judge.
iii) The care proceedings will remain in the Family Court and must not be transferred to the High Court (note that a District Judge or Circuit Judge has no power to transfer a care case to the High Court: see FPR 29.17(3) and (4) and PD29C). The section 9 Circuit Judge conducting the two sets of proceedings – the care proceedings in the Family Court and the inherent jurisdiction proceedings in the High Court – can do so sitting simultaneously in both courts.
iv) If this is not possible, steps should be taken to arrange a separate hearing in front of a section 9 judge as soon as possible (if at all possible, within days at most) after the final hearing of the care proceedings. Typically, there will be no need for the judge to revisit matters already determined by the care judge, unless there are grounds for thinking that circumstances have changed; indeed, the care judge should, wherever possible and appropriate, address as many of these issues as possible in the care proceedings judgment.
v) The evidence should include, in addition to all the other evidence required in the care proceedings, evidence on the matters referred to in paragraph 51 above. These matters should also, mutatis mutandis, be included in the section 31A care plan put before the court in the care proceedings.
vi) Where the care proceedings have been concluded for some time, the process will be that indicated in paragraphs 50-51 above.
 Review: Continuing review is crucial to the continued lawfulness of any "confinement". What is required are:
i) Regular reviews by the local authority as part of its normal processes in respect of any child in care.
ii) A review by a judge at least once every 12 months. The matter must be brought back before the judge without waiting for the next 12-monthly review if there has been any significant change (whether deterioration or improvement) in the child's condition or if it is proposed to move the child to a different placement.
iii) The child must be a party to the review and have a guardian (if at all possible, the guardian who has previously acted for the child).
iv) If there has been no significant change of circumstances since the previous hearing / review, the review can take place on the papers, though the judge can of course direct an oral hearing. The form of the next review is a matter on which the judge can give appropriate directions at the conclusion of the previous hearing."
"...due to many reasons including L's placement being an emergency placement after his prior placement gave immediate notice that the placement had broken down and also, the current public health crisis".
Within this context, I make clear that none of those matters constitutes a valid reason for failing to follow the process set out in Re A-F (Children) for obtaining an order authorising the deprivation of a child's liberty in an appropriate case.
"It is with regret that at the time that L was placed at [named placement], there was no assessment as to whether L's liberty was or would be deprived at that placement. The Local Authority's focus was on protecting L and identifying an appropriate placement for him."
However, as Lord Kerr pointed out in Cheshire West and Chester v P  AC 896 at  "Benevolence underpinning a regime which restricts liberty is irrelevant to an assessment of whether it in fact amounts to deprivation". This observation applies equally with respect to children.
i) L is subject to supervision on a 2:1 staff ratio at all times when in the community;
ii) L is subject to supervision on a 2:1 staff ratio whenever travelling by car;
iii) L is not permitted to leave the placement alone;
iv) Within the placement and the garden, L is constantly observed, from a distance, with dialogue intervention progressing to physical restraint intervention, should he seek to leave, and his behaviours escalate, warranting such intervention;
v) The CALM (Crisis Aggression Limitation Management) restraint methods, involving a 5 level system of physical intervention, is used at the times when L needs to be restrained for either his, other residents' or staff members, physical safety