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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> D (A Child ; deprivation of liberty), Re [2015] EWHC 922 (Fam) (31 March 2015) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2015/922.html Cite as: [2015] COPLR 209, [2015] 3 FCR 60, (2015) 144 BMLR 210, [2015] Fam Law 636, [2015] EWHC 922 (Fam), [2016] 1 FLR 142 |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
TRUST A |
Applicant |
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and – |
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(1) X (By the ![]() ![]() (2) A LOCAL AUTHORTITY (3) Y (4) Z |
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____________________
Reeve
LLP) for the Applicant
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 :
Introduction
The issues
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 considerdeclaring
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 particularrestricted
place for a not negligible length of time."
" (b) the subjective component of lack of valid consent; and
(c) the attribution ofresponsibility
to the state".
Background
"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 frontdoor.
![]()
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 allrelevant
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, andrequires
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 todeflect
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 Teamreviews
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."
Law
37. The second question, therefore, is what is the essential character of adeprivation
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. […] thedifference
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 withdisabilities,
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 physicalliberty,
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.
and
50. The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them hasdeveloped
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 beingdeprived
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: Thedecisions
of the European Court of Human Rights in Neilson v
Denmark
[1988] 11EHRR 175 and of this court in
Re
K [2002] 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. […] Achild
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) [1994] 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 interestingdiscussion
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 therestrictions
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 achild
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—
(a)that—
(i)he has a history of absconding and is likely to abscond from any otherdescription
of accommodation; and
(ii)if he absconds, he is likely to suffer significant harm; or
(b)that if he is kept in any otherdescription
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 whorequires
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 anddetermined
on the basis of that consent even though there are one or more persons who have parental
responsibility
for him.
(4)If the patientdoes
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)thereference
to a patient who has capacity is to be
read
in accordance with the Mental Capacity Act 2005; and
(b)"parentalresponsibility"
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 ordental
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 inrelation
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 parentalresponsibility
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 applicantrecognises
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 thatD
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.
Analysis
Conclusions