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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: https://www.bailii.org/ew/cases/EWHC/Fam/2015/922.html Cite as: [2015] 3 FCR 60, (2015) 144 BMLR 210, [2015] Fam Law 636, [2016] 1 FLR 142, [2015] EWHC 922 (Fam), [2015] COPLR 209 |
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delivered
in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their
family
must be strictly preserved. All persons, including
representatives
of the media, must ensure that this condition is strictly complied with. Failure to
do
so will be a contempt of court. 2015] EWHC 922 ( Fam) | ||
FAMILY
DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| TRUST A |
Applicant |
|
and – |
||
| (1) X (By the Child's Guardian) (2) A LOCAL AUTHORTITY (3) Y (4) Z |
Respondents |
____________________
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
D
was born on 23 April 1999 and is 15 years of age. He was
diagnosed
with Attention
Deficit
Hyperactivity
Disorder
at the age of 4, with Asperser's Syndrome at the age of 7 and with Tourette's syndrome at the age of 8.
referral
was made to the Child and Adolescent Mental Health services because of his challenging behaviours at home. His treating community psychiatrist made a
referral
to Hospital B. On 15 October 2013 he was informally admitted for a multidisciplinary assessment and treatment.
D
remains
at Hospital B to
date.
In the opinion of his treating psychiatrist,
Dr
K,
D
is now fit to be
discharged
from the hospital. The local authority is in the process of identifying a suitable
residential
placement and it is hoped that
D
will be placed by the end of this month.
December
2014, and in light of the
decision
of the Supreme Court in Surrey County Council v P, Cheshire West and Chester Council v P [2014] UKSC 19 [2014] AC 896 ('Cheshire West'), the hospital Trust issued an application under the inherent jurisdiction of the High Court seeking a
declaration
that the
deprivation
of
D's
liberty
by the Trust was lawful and in his best interests. On 17
December
2014 Holman J made an interim
declaration
that the
deprivation
of
liberty
was lawful. He further gave
directions
for the hearing of this application.
The issues
determine
the following principal 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.
D
lives at Hospital B satisfy the first limb of the Cheshire West test namely:
"the objective component of the confinement in a particularrestricted
place for a not negligible length of time."
D's
parents cannot consent to his placement at Hospital B because such a
decision,
to consent to what would otherwise amount to a
deprivation
of
liberty,
falls outside the 'zone of parental
responsibility'.
D's
placement under the inherent jurisdiction of the High Court.
diametrically
opposed stance. It submits that the circumstances of
D's
placement
do
not amount to a
deprivation
of
liberty.
Further, it submits that the
decision
of
D's
parents to consent to his placement at Hospital B falls within the proper exercise of parental
responsibility.
Accordingly what might otherwise constitute a
deprivation
of
liberty
does
not
do
so because the second and third limbs of the test in Cheshire West are not satisfied namely:
" (b) the subjective component of lack of valid consent; and
(c) the attribution ofresponsibility
to the state".
D
was well placed at Hospital B and was progressing.
D's
mother, W, acted in person. She
did
not seek to make any submissions.
D's
father, M, was unable to appear at this hearing but
did
not seek an adjournment nor to make any submissions on the principal issues.
Background
D
was
diagnosed
with Attention
Deficit
Hyperactivity
Disorder,
Asperger's Syndrome and Tourette's Syndrome from a very early age. On admission to Hospital B in October 2013 he was further
diagnosed
as suffering from a mild learning
disability.
D
in the
family
home. He had significant
difficulties
with social interactions. His behaviour was challenging; he was observed to be physically and verbally aggressive.
D
would urinate and
defecate
in inappropriate places. He presented with anxiety and paranoid behaviours. All of this had a marked adverse effect on
D's
younger brother R. Medication had limited effects.
D
was
referred
to his local Child and Adolescent Mental Health team. His treating psychiatrist made a
referral
to Hospital B who agreed to admit
D
informally for multi
disciplinary
assessment and treatment.
D
lives within the grounds of the hospital. He attends an on site school on a full time basis.
regular
basis.
D
frequently speaks to his parents on the telephone. He enjoys home visits usually at a weekend for up to six hours but he is supervised at all times.
Dr
K
describes
D's
life at Hospital B as follows:
"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."
relation
to the
reviews
of
D's
progress and the suitability of his continued placement,
Dr
K
reported:
"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."
D
is assessed by
Dr
K as not being 'Gillick' competent to consent to his
residence
and care arrangement or to any
deprivation
of
liberty.
Dr
K considers it inappropriate to use the provisions of the Mental Health Act 1983 to place
D
under section. It is not necessary to
detain
D
in order to treat him.
Dr
K agreed that
D
was now fit to be
discharged
from hospital to a
residential
placement. There has been considerable
delay
in identifying a suitable
residential
unit for
D.
I
do
not intend to
dwell
on the
reasons
for that
delay.
It is highly likely that
D
will be subject to a similar
regime
of supervision and control in that placement as he is at the hospital.
Law
deprivation
of
liberty
in the context of the living arrangements of mentally incapacitated individuals. It was held by the majority that since the term,
deprivation
of
liberty,
was to be given the same meaning in
domestic
law as in Article 5 of the Convention it was to be construed by
reference
to the
relevant
jurisprudence of the European Court of Human Rights ('ECHR').
review
of
decisions
of the ECHR, Baroness Hale said:
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.
decision
of the ECHR in the case of Neilsen v
Denmark
(1988) 11 EHRR 175. There the court found that the hospitalisation of a 12 year old for 5 months was not a
deprivation
of
liberty.
It was rather the
responsible
exercise by his mother of her custodial rights in the interest of the child. Lord Neuberger
referred
to the
decisions
in Neilsen as 'controversial' [paragraph 72]. Baroness Hale observed that the
decision
of the court in that case "would appear, therefore….to turn on the proper limits of parental authority in
relation
to the child" [paragraph 30].
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.
deprivation
of
liberty
in
respect
of their children 'living at home' (per Lord Neuberger at paragraph 72) or 'in the normal
family
setting' (per Lord Kerr at paragraph 79).
referred
to the case of RK v BCC and othrs [2011] EWCA Civ 1305 which was concerned with the question of whether the accommodation of a child or young person under s20 CA 1989 could give rise to a
deprivation
of
liberty.
The Court of Appeal agreed with the conclusion of Mostyn J that on the facts of the case the circumstances of the young person's accommodation amounted to a
restriction
of her
liberty
and not a
deprivation
of
liberty.
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. Howdoes
it apply to this case on its facts?
reflection,
the concession was wrongly made and the consensus was erroneously achieved. I am told that no authorities were cited to the Court of Appeal in support of the concession. The observations of Thorpe LJ set out above and in particular the passage ' a parent may not lawfully
detain
or authorise the
deprivation
of
liberty
of a child' were made obiter. With great
respect
to Thorpe LJ, I
doubt
the same correctly states the legal position. This bold statement is arguably inconsistent with the views expressed by two of the Supreme Court Justices in Cheshire West: see paragraph 26 above.
referred
to the '
deprivation
of
liberty
of a child' without any qualifications to the child's age or maturity. It is obvious that young children will be under the 'complete supervision and control' of the parents and 'will not be free to leave' the
family
home without supervision. Such a state of affairs would certainly not amount to a
deprivation
of
liberty.
In the premises I
do
not consider myself to be bound by the observations made in RK.
Re
K (A child) (Secure Accommodation Order: Right to
Liberty)
[2001]
Fam
377 the Court of Appeal considered whether s 25 CA 1989 was incompatible with Art 5 of the Convention. The court concluded it was not. In the course of giving judgment Butler-Sloss P said:
29. […] A child can be the subject of a secure accommodation order in circumstances in which the local authoritydoes
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 a child may be exercised by the local authority over a child in its care, the implementation of a secure accommodation orderdoes
not
represent
normal parental control.
read
in the context of the provisions of a secure accommodation order which is
recognised
to be a
draconian
order. It must be granted sparingly and only where, of course, the statutory criteria of s25 (1) (a) and (b) 1989 are satisfied namely:
… 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.
decision
in
Re
K is limited to the interpretation of s 25 CA 1989 and the compatibility of that statutory provision with article 5 of the Convention. The
references
to the ambit of parental
responsibility
were obiter. In any event I
do
not
derive
any assistance from the
decision
and observations made in
Re
K in
deciding
whether
D's
parents on the facts of this case were entitled to consent to his
detention
in Hospital B.
D
will be 16 very shortly on 23 April when a
different
approach and statutory
regime
applies. Thus once
D
is 16 years of age any
deprivation
of
D's
liberty
would have to be sanctioned by the Court of Protection pursuant to the provisions of the Mental Capacity Act 2005.
referred
to the provisions of s131 MHA 1983 which states:
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.
draw
a
distinction
between a child and a young person who has yet to achieve his/her majority but who has attained the age of 16 or 17. Thus the legal authority of a parent to consent to the
detention
or treatment of a 16 or 17 year old is severely curtailed, if not
removed.
days
is irrelevant as far as the effect of those provisions is concerned.
D
was accommodated amounted to a
deprivation
of
liberty
subject to the issue of consent to the placement.
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.
do
not accept any of those propositions. 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.
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.
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.
do
not accept the local authority's third submission that I should
reject
the approach of the Supreme Court in Cheshire West and apply the Court of Appeal's test of '
relative
normality'. I
do
not understand the logic of the submission that I should hold that the
decision
of the Supreme Court
does
not apply to the facts of this case but then
resurrect
and apply the test propounded by the Court of Appeal which was expressly
rejected
by the majority of the Supreme Court.
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).
draws
a
distinction
between the circumstances of the child in Neilsen and those of
D.
I agree with those submissions. In any event, and for the avoidance of any
doubt,
I have not had
regard
to the 'controversial' majority judgment in Neilsen in coming to my
decision
in this case.
reminds
me that
Dr
K
does
not consider
D
to be Gillick competent to consent to his
residence,
treatment or care. He
referred
me to the provision of the new MHA Code of Practice which comes into effect on 1 April
2015.
Paragraphs 19.47 – 19.48 provide:
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.)
D's
parents cannot consent to a
deprivation
of his
liberty
in Hospital B for 11
reasons:
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
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.
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.
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.
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.
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.
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.
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.
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?
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?
reasons
or justifications for
denying
the parents that role or permitting the state to interfere in
D's
life or that of his
family.
different
if the parents were acting contrary to medical advice or having consented to his placement at Hospital B, they simply abandoned him or took no interest or involvement in his life thereafter.
different
here.
D's
parents have
regular
phone calls with him. They
regularly
visit him at the unit. Every weekend
D
has supported visits to the
family
home. He greatly enjoys spending time at home with his parents and his younger brother.
disproportionate,
and fly in the face of common sense, to rule that the
decision
of the parents to place
D
at Hospital B was not well within the zone of parental
responsibility.
Conclusions
D
is accommodated would amount to a
deprivation
of
liberty
but for his parents' consent to his placement there.
D's
parents to his placement at Hospital B, with all of the
restrictions
placed upon his life there, falls within the 'zone of parental
responsibility'.
In the exercise of their parental
responsibility
for
D,
I am satisfied they have and are able to consent to his placement.
deprivation
of
liberty.
do
not propose to give wider guidance in
respect
of the approach taken by hospital trusts or local authorities in the cases of young people under the age of 16 who are or may be subject to a
deprivation
of
liberty.
These cases are invariably fact specific and
require
a close examination of the 'concrete' situation on the ground.
reason
I
do
not consider it would be appropriate for me to comment on
D's
care in the new proposed
residential
unit. The local authority has not yet identified a suitable unit and I
do
not know what
D's
day
to
day
life will consist of or of the
restrictions
that will be placed upon him. Accordingly I am unable to
determine
whether the
regime
at that unit could or would amount to a
deprivation
of his
liberty.
remit
of this judgment to comment on the approach of the local authority, still less that of the Court of Protection, once
D
has attained the age of 16; it would not be appropriate for me to
do so.