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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 >> D (A Child ; deprivation of liberty), Re  EWHC 922 (Fam) (31 March 2015)
Cite as:  COPLR 209,  1 FLR 142,  EWHC 922 (Fam), (2015) 144 BMLR 210,  Fam Law 636,  3 FCR 60
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Strand, London, WC2A 2LL
B e f o r e :
| TRUST A
|(1) X (By the Child's Guardian)
(2) A LOCAL AUTHORTITY
Mr Jeremy Ford (instructed by CAFCASS Legal) for the First Respondent (By the Child's Guardian)
Mr Jonathan Cowen and Mr Edward Bennett (instructed by A Local Authority Solicitors) for the Second Respondent
Third Respondent Y in person
Fourth Respondent did not appear nor was represented
Hearing dates: 9 and 10 March 2015
Crown Copyright ©
Mr Justice Keehan :
a) does the placement of D at Hospital B satisfy the first limb of the test propounded by Baroness Hale in Cheshire West;
b) if so, does the parents' consent to his placement come within the exercise of parental responsibility in respect of a 15 year old young person. In other words are the parents able to consent to what would otherwise amount to a deprivation of liberty; and
c) if not, should the court exercise its powers under the inherent jurisdiction to consider declaring that the deprivation of liberty of D at Hospital B is lawful and in his best interests.
"the objective component of the confinement in a particular restricted place for a not negligible length of time."
" (b) the subjective component of lack of valid consent; and
(c) the attribution of responsibility to the state".
"D is residing on X one of the two buildings which make up the adolescent service. Each building is a six-bedded unit. Each young person has their own bedroom, and shares bathroom and living areas with the other patients. There is a school room attached to each building, and all the students receive full time education provided from a special school outreach service."
"D's unit is staffed 24 hours a day.
It has a locked front door. D does not leave the ward without a staff member or his family accompanying him. He has been offered opportunity to undertake small tasks by himself, such as emptying the bins, but he says he is scared. Unescorted leave would be considered as part of his treatment package to see how he fares.
D has his own bedroom, which he can access whilst he is on the unit at his leisure. He shares a bathroom and residential areas within the building.
D is on general observations. This means that he is checked on every half an hour or so. However, D seeks out contact with staff more regularly within that time and this means that he is under direct observation on a much more regular basis. I am of the view that he is under constant supervision and control.
His school is integral to the building. He goes off site for all relevant school activities such as, to music sessions on site, and to activities which take place in the community, such as shopping and cafes. He leaves the unit on a daily basis, accompanied by staff.
He is independent in his self-care, and requires minimal support for this. He eats a varied diet independently, and is able to vocalise his preferences.
Attempts to engage him in more serious conversation unnerves him, and he will try to deflect the subject, or directly challenge the person, by telling them that he is not happy. I am of the view that this is reflected in the anxiety he has shown around his discharge. My team will need to manage this carefully within the discharge process.
When out in the community, D is supported one-to-one. He has stated that he would be anxious to go out on his own, and prefers to be accompanied by staff. On occasion he has to be reminded about his behaviour when out, as he might stare and pull faces at strangers. He has been encouraged to do some tasks independently, such as emptying the bins outside, but he has stated that he was too anxious to do it by himself and so he is accompanied when doing this."
"The Trust undertakes weekly Multidisciplinary Team reviews of D's care by way of a team review at Hospital B. These involve those involved in D's care, including myself, nursing staff, speech and language specialists, occupational therapists and representatives from his school (which is on site at Hospital B).
In addition, on a five or six weekly basis, D's care is reviewed by members of the Trust and local services. This includes A Local Authority, whose representatives are invited to attend. This meeting gives an overview of progress over the last 6 weeks. Historically A Local Authority had not attended as there was no social worker allocated. Those present will discuss D's presentation in depth and any changes/proposed changes to his care plan and medication. Feedback and input from his family are obtained also and a key component of the meeting is to plan next steps in his care, including discharge planning."
37. 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 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": 3 EHRR 333, para 92. 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.
and later said
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.
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.
54. 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.
14. The consensus is to this effect: The decisions of the European Court of Human Rights in Neilson v Denmark  11EHRR 175 and of this court in Re K  2WLR 1141 demonstrate that an adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However restrictions so imposed must not in their totality amount to deprivation of liberty. Deprivation of liberty engages the Article 5 rights of the child and a parent may not lawfully detain or authorise the deprivation of liberty of a child.
15. This consensus was supported and accepted by the court. How does it apply to this case on its facts?
29. […] A child can be the subject of a secure accommodation order in circumstances in which the local authority does not share parental responsibility with the parents. It is a benign jurisdiction to protect the child as well as others: see In re W (Secure Accommodation Order: Attendance at Court)  2 FLR 1092, 1096 per Ewbank J, but it is none the less restrictive. If a parent exercised those powers by detaining a child in similar restrictive fashion and was challenged to justify such detonation, for my part I doubt whether the general rights and responsibilities of a parent would cover such an exercise of parental authority. It might be permissible for a few days but not for nearly two years.
99 …There was some interesting discussion about the way in which parents restrict the movements of their children from time to time by, for example, putting young children into bed when they would rather be up, or "grounding" teenagers when they would prefer to be partying with their friends, or sending children to boarding schools, entrusting the schools with authority to restrict their movements. All this reflects the normal working of family life in which parents are responsible for bringing up, teaching, enlightening and disciplining their children as necessary and appropriate, and into which the law and local authorities should only intervene when
the parents' behaviour can fairly be stigmatised as cruel or abusive.
101 … If the restrictions necessarily imposed on K for his own safety and that of others were imposed on an ordinary boy of 15, who did not pose the problems requiring a secure accommodation order, in my view, there would be a strong case that his parents were ill-treating him. As it is the local authority have been obliged, as a "last resort", to seek authorisation to impose restrictions on the boy's liberty which would otherwise be unacceptable, whether imposed by his parents or anyone else. That, as it seems to me, is the point of the unequivocal statutory language. The purpose is to restrict liberty, and there would be no point in such a restriction or the need for it to be authorised by the court, if it were not anticipated that much more was involved than ordinary parental control…
102 In short, although normal parental control over the movements of a child may be exercised by the local authority over a child in its care, the implementation of a secure accommodation order does not represent normal parental control.
… unless it appears—
(i)he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii)if he absconds, he is likely to suffer significant harm; or
(b)that if he is kept in any other description of accommodation he is likely to injure himself or other persons.
131 Informal admission of patients.
(1)Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or [registered establishment] in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or [registered establishment] in pursuance of such arrangements after he has ceased to be so liable to be detained.
[ (2)Subsections (3) and (4) below apply in the case of a patient aged 16 or 17 years who has capacity to consent to the making of such arrangements as are mentioned in subsection (1) above.
(3)If the patient consents to the making of the arrangements, they may be made, carried out and determined on the basis of that consent even though there are one or more persons who have parental responsibility for him.
(4)If the patient does not consent to the making of the arrangements, they may not be made, carried out or determined on the basis of the consent of a person who has parental responsibility for him.
(5)In this section—
(a)the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005; and
(b)"parental responsibility" has the same meaning as in the Children Act 1989.]
s8(1) The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.
i) Cheshire West did not apply to those cases where the young person concerned was under the age of 16 years;
ii) in such a case the decision in Cheshire West, that the disability or mental disorder of the young person concerned was irrelevant to the question of whether there was a deprivation of liberty, did not apply; and
iii) the court should prefer and apply the 'relative normality' test propounded by the Court of Appeal in P and Q.
19.47 An additional and significant factor when considering whether the proposed intervention in relation to a child or young person is a restriction of liberty or amounts to a deprivation of liberty is the role of parental control and supervision. Practitioners will need to determine whether the care regime for, and restrictions placed on, the child or young person accord with the degree of parenting control and supervision that would be expected for a child or young person of that age. For example, whereas it is usual for a child of under 12 years not to be allowed out unaccompanied without their parent's permission, this would not usually be an acceptable restriction on a 17 year old. Account also needs to be taken of the particular experience of the child or young person. For example, a younger child who has been caring for their parent, including shopping for the household and/or accompanying their parent to medical appointments, might not be used to being prevented from going out unaccompanied.
19.48 Prior to the Supreme Court's judgment in Cheshire West, case law had established that persons with parental responsibility cannot authorise a deprivation of liberty. Cheshire West clarified the elements establishing a deprivation of liberty, but did not expressly decide whether a person with parental responsibility could, and if so in what circumstances, consent to restrictions that would, without their consent, amount to a deprivation of liberty. In determining whether a person with parental responsibility can consent to the arrangements which would, without their consent, amount to a deprivation of liberty, practitioners will need to consider and apply developments in case law following Cheshire West. In determining the limits of parental responsibility, decision-makers must carefully consider and balance: (i) the child's right to liberty under article 5, which should be informed by article 37 of the UNCRC, (ii) the parent's right to respect for the right to family life under article 8, which includes the concept of parental responsibility for the care and custody of minor children, and (iii) the child's right to autonomy which is also protected under article 8. Decision makers should seek their own legal advice in respect of cases before them. (Chapter 26 provides guidance on the use of restrictive interventions.)
i) D has the same Article 5 ECHR rights as an adult and the same definition of deprivation of liberty applies to him as it does to adults;
ii) D has a mental disorder, he is deprived of his liberty pursuant to Article 5 (1) (e) – see Cheshire at paragraph 6, per Baroness Hale: "Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL";
iii) D has been resident on a locked psychiatric ward for fifteen months;
iv) D can only leave that ward with adult 1:1 supervision;
v) whilst his parents consented to his placement, such consent much be seen in the context they could not accommodate him at their home;
vi) he does not lead a life of relative normalcy;
vii) D is fifteen and shortly will be afforded the protection of the MCA to authorise and review any deprivation of liberty occasioned by being deprived of his liberty at Hospital B (by way of application of s. 4A MCA, given Schedule A1 would not apply to him until he is 18);
viii) to rely (effectively solely) on parental consent, when D's parents cannot accommodate and care for him (and have no or other limited options for their son) is an insufficient safeguard to protect D's Article 5 ECHR rights;
ix) parental consent over a period of fifteen months, as means of review and safeguard, is not compliant with Article 5 (4);
x) it is out with the reasonable zone of parental control to authorise the deprivation of liberty for such a prolonged period of time and is inconsistent with a child's Article 5 ECHR right;
xi) hospital clinicians remain uneasy about caring for and depriving a child of his liberty, given the length of time and given his age, with only authority provided by way of parental consent.
The applicant recognises there may be cases where parents can authorise the deprivation of liberty of a younger child for a shorter period of time, in a hospital setting. The applicants are not certain the concession approved by the court in RK is correct. Indeed it seems clear parents can authorise the first stage of the deprivation of liberty test (i.e. they can deprive, rather than just restrict, the liberty of their children, at home) but that such deprivation is not an Article 5 deprivation of liberty, because it is not attributable to the state. Each case ultimately must be considered on its facts (however unpalatable such an approach may be in respect of public resource considerations).
Whilst the applicant (in many ways) would gratefully submit that D is not deprived of his liberty, it does not consider it is appropriate for a public body to interpret the law in a manner disadvantageous to the protection of a vulnerable child's rights. Whilst the applicant would readily adopt a "pragmatic approach" as identified by Gross LK in RK, the applicant submits the preferred conclusion, on the facts of these proceedings, is that D is deprived of his liberty, such deprivation is attributable to the state and his parents cannot provide valid consent.