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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> C (A Child), Re [2016] EWHC 3473 (Fam) (08 March 2017) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2016/3473.html Cite as: (2017) 20 CCL Rep 219, [2017] 2 FLR 875, 20 CCL Rep 219, [2016] EWHC 3473 (Fam) |
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![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() | ||
COURT
OF JUSTICE
FAMILY
DIVISION
![]() ![]() Strand, London, WC2A 2LL |
||
____________________
A ![]() ![]() ![]() | Applicant |
|
and –![]() ![]() (By her litigation friend, the Official Solicitor) ![]() ![]() |
||
![]() ![]() ![]() ![]() By his ![]() ![]() |
Respondents |
____________________
Local
Authority
Ms
Victoria
Butler-
Cole
(instructed by RP Robinson) for the Official Solicitor
Mr Malcolm Chisholm
(instructed by Hunt &
Coombs)
for the
Children's
Guardian
Hearing dates:
17th November
2016
____________________
VERSION
OF JUDGMENT
Mr Justice Keehan :
Introduction
Background
a. staff know the whereabouts ofC
at all times;
b. he is never left alone in the unit;
c.
he is never left alone with other residents;
d.
he is subject to 1:1 staffing including
during
breaks at school.
C
is subject to
constant
observations by staff and has no free time when he is not observed;
e.
the
external
![]()
doors
of the unit are locked at night;
f. the bedroomdoors
are alarmed at night to
ensure
privacy and to
ensure
the whereabouts of all residents, including
C,
are known.
C
is not permitted to
enter
another resident's bedroom (which restriction applies to all residents);
g. internaldoors
are locked if
C's
behaviour necessitates the same;
h.C
![]()
cannot
leave the unit unsupervised and
cannot
leave unaccompanied without permission;
i. he is monitored at all activities outside of the unit and is accompanied on all recreational and socialevents;
j. he is not permitted any internet access and the use of his mobile telephone is restricted tocall
only four telephone numbers; and
k.C
![]()
cannot
travel alone on public transport.
The Hearing & Judgment
a. Limb one of Storck isestablished,
namely that
C
is
confined
to a
certain
limited place for a not negligible length of time;
b. Hecannot
in law
consent
to his
confinement
or he
does
not, as matter of fact,
consent
of his
confinement;
and
c.
The fact of his
confinement
is imputable to the actions of the state.
There is no dispute
that limb three of Storck is satisfied on the facts of this
case.
Summary of the Positions of the Parties
a.C
is so
confined
at the residential unit that limb one of Storck is satisfied;
b. given thatC
has been assessed by his
children's
guardian and his legal team as "Gillick
competent",
he
can
in law
consent
to his
confinement
but in fact he
does
not
consent;
c.
the only mechanism by which his
deprivation
of liberty
can
be
authorised
by the
court
is for the
local
![]()
authority
to be permitted to seek the
authorisation
under the inherent jurisdiction of the High
Court.
![]()
a.C
![]()
can
in law probably
consent
to his
confinement;
![]()
b. beforeconcluding
that
C
![]()
does
in fact give a
valid
![]()
consent
to his
confinement,
the
court
must be satisfied that he not only
consented
at the
date
of the hearing but that it is likely or probable that his
consent
would
continue
to be given and would not be withdrawn for an appreciable future period of time;
c.
it is uncontroversial that a
consent
once withdrawn
cannot
be relied upon for
confinement
thereafter; and
d.
the use of the inherent jurisdiction to
authorise
a
deprivation
of liberty is not Article 5
compliant,
but there is nevertheless no alternative route on the facts of this
case
by which any
deprivation
of liberty
can
be
authorised.
![]()
a. hisconfinement
at the residential unit
does
not satisfy limb one of Storck;
b. if itdoes,
![]()
C
![]()
can
in law and
does
in fact
consent
to the same; and
c.
accordingly, any issue of the
court
having to
authorise
his
confinement
at the unit
does
not arise.
Submissions – the Local
Authority
"(2) Nocourt
shall
exercise
the High
Court's
inherent jurisdiction with respect to
children—
(a) so as to require achild
to be placed in the
care,
or put under the supervision, of a
local
![]()
authority;
(b) so as to require achild
to be accommodated by or on behalf of a
local
![]()
authority;
(c)
so as to make a
child
who is the subject of a
care
order a ward of
court;
or
(d)
for the purpose of
conferring
on any
local
![]()
authority
power to
determine
any question which has arisen, or which may arise, in
connection
with any aspect of parental responsibility for a
child.
(3) No application for anyexercise
of the
court's
inherent jurisdiction with respect to
children
may be made by a
local
![]()
authority
unless the
authority
have obtained the leave of the
court.
(4) Thecourt
may only grant leave if it is satisfied that—
(a) the result which theauthority
wish to achieve
could
not be achieved through the making of any order of a kind to which subsection (5) applies; and
(b) there is reasonablecause
to believe that if the
court's
inherent jurisdiction is not
exercised
with respect to the
child
he is likely to suffer significant harm.
(5) This subsection applies to any order—
(a) made otherwise than in theexercise
of the
court's
inherent jurisdiction; and
(b) which thelocal
![]()
authority
is
entitled
to apply for (assuming, in the
case
of any application which may only be made with leave, that leave is granted)."
(i)Local
![]()
authorities
are under a
duty
to
consider
whether any
children
in need, or looked-after
children,
are,
especially
those in foster
care
or in a residential placement, subject to restrictions amounting to a
deprivation
of liberty.
(ii) TheCheshire
West[1]
criteria
must be rigorously applied to the individual
circumstances
of
each
![]()
case.
![]()
(iii) Thecomparison
to be made is not with another
child
of the same age placed in foster
care
or in a residential home, but simply with another
child
of the same age.
(iv) Adeprivation
of liberty will be lawful if warranted under statute; for
example,
under s.25 of the
Children
Act 1989 or the Mental Health Act 1983 or under the remand provisions of LASPO 2012 or if a
child
has received a
custodial
sentence under the PCCSA 2000.
(v)
Where a
child
is not looked after, then an apparent
deprivation
of liberty may not in fact be a
deprivation
at all if it falls within the zone of parental responsibility
exercised
by his parents (see Re
D).
The
exercise
of parental responsibility [in respect of a
child
under the age of 16] may amount to a
valid
![]()
consent,
with the
consequence
that the second limb of
Cheshire
West is not met. In those
circumstances,
the
court
will not need to make any
declaration
as to the lawfulness of the
child's
![]()
deprivation
of liberty.
(vi)
Where a
child
is a looked-after
child,
![]()
different
![]()
considerations
may apply, regardless of whether the parents
consent
to the
deprivation
of liberty.
(vii)
Where a
child
is the subject of an interim
care
order or a
care
order, it is
extremely
unlikely that a parent
could
![]()
consent
to what would otherwise amount to a
deprivation
of liberty. In those
circumstances,
a
local
![]()
authority
![]()
cannot
![]()
consent
to a
deprivation
of liberty.
(viii)
The
local
![]()
authority
must first
consider
whether s.25 of the
Children
Act is applicable or appropriate in the
circumstances
of the individual
case.
This will require an analysis of (1) whether any of the regulations
disapply
s.25, (2) whether the intended placement is accommodation provided for the purposes of restricting liberty and, thus, secure accommodation within s.25 and (3) whether the test set out in s.25.1(a) or (b) is met.
(ix) If it is not, then the s.100(4) leave hurdle is likely to becrossed
on the basis that any unlawful
deprivation
of liberty is likely to
constitute
significant harm.
(x) Irrespective of the means by which thecourt
![]()
authorises
the
deprivation
of a
child's
liberty, whether under s.25 or the inherent jurisdiction, the
local
![]()
authority
should
cease
to impose such
deprivation
as soon as (1) the s.25
criteria
are not met, or (2) the reasons justifying the
deprivation
of liberty no longer subsist.
Authorisation
is permissive and not prescriptive.
(i)C
is
cared
for by the
local
![]()
authority
pursuant to a
care
order. He is not the subject of a secure accommodation order (s25
CA
1989), remanded (pursuant to LASPO) or
detained
under the Mental Health Act 1983;
(ii) Section 25 of theChildren
Act 1989 is not applicable or appropriate in the
circumstances
of
C's
individual
case.
![]()
C's
home is not registered under regulation 3 of the
Children
(Secure Accommodation) Regulations 1991;
(iii)Consequently,
if
C
is
deprived
of his liberty (a matter of fact for the
court
to
determine,
![]()
discussed
below), then any such
deprivation
is an unlawful interference with his Article 5 rights;
(iv) If, as thelocal
![]()
authority
asserts is the
case,
![]()
C
is
deprived
of his liberty then any such
deprivation
of liberty is unlawful unless it is
authorised;
(v)
Further, the unlawful
deprivation
of liberty as
described
above is likely to (and the applicant asserts, must)
constitute
significant harm.
(vi)
The use of the inherent jurisdiction is the only way (at the time of writing) that the significant harm which
C
is suffering (namely, being unlawfully
deprived
of his liberty) may be
ended.
(vii)
Put another way in the
context
of s100 (4):
(a) the result which theauthority
wish to achieve (namely
authorising
the
deprivation
of liberty to which
C
is
exposed)
![]()
could
not be achieved through the making of any order of a kind to which subsection (5) applies; and
(b) there is reasonablecause
to believe that if the
court's
inherent jurisdiction is not
exercised
with respect to the
child
he is likely to suffer significant harm (by
virtue
of being
deprived
of his liberty)
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 lawfuldetention
of a person after
conviction
by a
competent
![]()
court;
![]()
(b) the lawful arrest ordetention
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
of reasonable suspicion of having
committed
and 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 ordetention
of a person to prevent his
effecting
an unauthorized
entry
into the
country
or of a person against whom action is being taken with a
view
to
deportation
or
extradition.
![]()
2.Everyone
who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the
charge
against him.
3.Everyone
arrested or
detained
in accordance with the provisions of paragraph 1(
c)
of this article shall be brought promptly before a judge or other officer
authorized
by law to
exercise
judicial power and shall be
entitled
to trial within a reasonable time or to release pending trial. Release may be
conditioned
by guarantees to appear for trial.
4.Everyone
who is
deprived
of his liberty by arrest or
detention
shall be
entitled
to take proceedings by which the lawfulness of his
detention
shall be
decided
speedily by a
court
and his release ordered if the
detention
is not lawful.
5.Everyone
who has been the
victim
of arrest or
detention
in
contravention
of the provisions of this article shall have an
enforceable
right to
compensation.
![]()
"[The United NationsConvention
on the Rights of Persons with
Disabilities]
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
….. So is there an acid test for the
deprivation
of liberty in these
cases?....
The answer, as it seems to me, lies in those features which have
consistently
been regarded as "key" in the jurisprudence which started with HL
v
United Kingdom 40
EHRR
761: that the person
concerned
"was under
continuous
supervision and
control
and was not free to leave" (para 91). I would not go so far as Mr Gordon, who argues that the supervision and
control
is relevant only insofar as it
demonstrates
that the person is not free to leave. A person might be under
constant
supervision and
control
but still be free to leave should he
express
the
desire
so to
do.
![]()
Conversely,
it is possible to imagine situations in which a person is not free to leave but is not under such
continuous
supervision and
control
as to lead to the
conclusion
that he was
deprived
of his liberty. Indeed, that
could
be the
explanation
for the
doubts
![]()
expressed
in Haidn
v
Germany."
"In agreement with Lady Hale, Iconsider
that the Strasbourg
court
![]()
decisions
![]()
do
indicate that the twin features of
continuous
supervision and
control
and lack of freedom to leave are the
essential
ingredients of
deprivation
of liberty (in addition to the area and period of
confinement).
In that
connection,
see Guzzardi
v
Italy (1980) 3
EHRR
333, para 95 ("supervision …
carried
out strictly and on an almost
constant
basis … [and] not able to leave his
dwelling
between 10 pm and 7 am"), HL
v
United Kingdom (2004) 40
EHRR
761, para 91 ("under
continuous
supervision and
control
and … not free to leave"), Storck
v
Germany (2005) 43
EHRR
96, para 73 ("
continuous
supervision and
control
… and … not … free to leave"), Kedzior
v
Poland (Application No 45026/07) 16 October 2012, para 57 ("
constant
supervision and … not free to leave"), Stanev
v
Bulgaria (2012) 55
EHRR
22, para 128 ("
constant
supervision and … not free to leave"), and Mihailovs
v
Latvia [2013]
ECHR
65, para 132 ("under
constant
supervision and … not free to leave")."
Submissions – the Official Solicitor
There is nothing in the Strasbourg jurisprudence to suggest that there is an age below whichvalid
![]()
consent
is not possible. The
caselaw
tends to proceed on the basis that the individual
either
![]()
does
or
does
not have
decision-making
![]()
capacity
under relevant
domestic
legislation by ascertaining whether the person 'of age' or not, without then seeking to investigate the issue further.
[ … ] In anyevent,
the
domestic
law of
England
and Wales,
cannot
be said to impose a
clear
![]()
cut-off
for the acquisition of legal
capacity,
because of the
concept
of Gillick
competence.
Although the presumption of
capacity
![]()
does
not apply to
children
under 16, and so there is a
difference
in the legal framework that applies, the fact that
children
under 16 may, in particular
cases,
be judged
competent
to make their own
decisions,
makes it hard to see how, as a matter of principle, the possibility of
consent
by a
child
under 16
could
be
excluded,
whatever the
decision
at issue.
The Official Solicitor submits that as a matter of principle, provided a person hascapacity
(or
competence)
to make
decisions
about whether to be "
detained"
or "
confined"
in such a way which would otherwise be a
deprivation
of his or her liberty absent
consent,
![]()
valid
![]()
consent
![]()
could
be given by that person, regardless of age. [ … ]
It is submitted that whenconsidering
whether a
child
under 16 is
competent
to give
valid
![]()
consent,
the
decision-maker
must give
careful
![]()
consideration
to the following:
a. Whether thechild
is in fact
consenting,
having regard not just to what the
child
says, but also what the
child
![]()
does;
b. Whether thechild's
![]()
consent
is likely to persist throughout the period of objective
confinement.
[C]
has said on multiple occasions that he wants more freedom and that he
disagrees
with the restrictions that are imposed on him. See:
a. Statement of [C]
![]()
dated
3.6.16 pointing out which freedoms permitted to other residents he would like including in particular not having 1:1 supervision at all times.
b. Statement of Angela Hallamdated
11.7.16 noting a
conversation
with Ms Sensicle who says that 'since the application for the
Deprivation
of Liberty [
C]
has
developed
a belief that he
doesn't
have to listen to her as the Judge will agree he
can
![]()
do
what he likes'.
c.
Statement of [
C]
![]()
dated
10.8.16 setting out that he is happy his guardian
does
not think it is in his best interests for the
court
to
authorise
his
deprivation
of liberty, and
confirming
that 'I
do
not believe I should be under any additional restrictions which
do
not apply to the other boys at the Home'.
d.
Statement by Ms Sensicle
dated
19.9.16
confirming
that [
C]
is '
consistently
![]()
clear
with me that he would like more freedom, to be able to go out into the
community
by himself, have more time to himself and have free access to the internet without staff's monitoring regimes.'
e.
Statement by Ms Sensicle
dated
19.9.16 noting that [
C]
said he wanted free time at ['S' youth
event]
without staff so he
could
smoke.
f. Record by Ms Sensicledated
30.9.16 noting that [
C]
'
commented
that
Court
was ages away and he
couldn't
wait to get freedom. He said that then he'
d
"f*** off out of this house and go out and none of you would know where I was" in a
defiant
tone.'
g. Statement by Angela Hallamdated
26.10.16 noting that [
C]
says he
does
not agree with the rules when he is in a bad mood.
Further, there iscontinuing
![]()
evidence
of [
C]
refusing to
comply
with the restrictions in place:
a. Using the internet on 12.9.16.
b.Climbing
out of his bedroom window on 13.9.16.
c.
Stealing a
cable
from school to use to access the internet and Facebook without staff permission in April-June
2016.
d.
Sneaking out of the house at night, including to
visit
friends.
f. Record by Ms Sensicledated
9.9.16 noting that [
C]
'sprinted off' out of her sight to speak to peers without supervision.
g. Planning to 'abscond' to see his girlfriend without supervision.
(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;
![]()
"TheCourt
![]()
considers
that, in the
context
of the
detention
of minors, the words "
educational
supervision" must not be
equated
rigidly with notions of
classroom
teaching. In particular, in the present
context
of a young person in
local
![]()
authority
![]()
care,
![]()
educational
supervision must
embrace
many aspects of the
exercise,
by the
local
![]()
authority,
of parental rights for the benefit and protection of the person
concerned."
Section 25Children
Act 1989 provides an
express
power to place a
child
in secure accommodation, inevitably
engaging
Article 5. Whether a placement is secure accommodation within the meaning of s.25 is, however, a question of fact (see Re
C
(
Detention:
Medical treatment) [1997] 2 FLR 180). The
current
placement for [
C]
is, however, not registered by the Secretary of State for Health as secure accommodation under the
Children
(Secure Accommodation) Regulations 1991, and
cannot
therefore be used as secure accommodation (regulation 3[2]).
The Official Solicitor submits, however, that this is not acomplete
answer to the question of the
court's
jurisdiction.
The reasons for thedeprivation
of [
C]'s
liberty in his present placement are the same as those set out in s.25: to prevent him from absconding and to prevent him
causing
harm to himself or others. The only reason s.25
does
not apply is because of the nature of the placement he has been placed in, not the
extent
of the restrictions he is under. [
C]
is
deprived
of his liberty just as his peers in secure accommodation units are
deprived
of their liberty.
It is obviously anomalous that achild
in [
C]'s
position
does
not have the benefit of any statutory framework governing his
deprivation
of liberty, in
contrast
to a
child
placed in registered secure accommodation. The Official Solicitor recognises that in recent
cases
(all involving Article 5(1)(
e))
the
court
has invoked the inherent jurisdiction to
authorise
![]()
deprivations
of liberty in settings that fall outside s.25 but
doubts
that the ad hoc use of the inherent jurisdiction in this way is adequate to satisfy the
demands
of Article 5.
The Official Solicitor notes that the President of theFamily
![]()
Division
has recently held that s.25 is not a
comprehensive
statutory scheme and therefore that it would not '
cut
across' the statutory scheme to invoke the inherent jurisdiction in respect of
deprivations
of liberty other than those falling within s.25 (In the matter of X and Y [
2016]
![]()
EWHC
2271 (
Fam)
at para 44). However, that
does
not
deal
with the requirement imposed by the
ECtHR
that the law itself must be
certain:
'where a national law
authorises
![]()
deprivation
of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness' (Grabowski
v
Poland (30 June 2015) at para 46).
It is submitted that the use of the inherent jurisdiction in thiscase
would not and
could
not satisfy these requirements. It is not accessible – there is no statute, no statutory or non-statutory governmental guidance, and there is no way to find out the basis on which the inherent jurisdiction will be invoked other than through a
decision
of the
court.
It is not precise – in the past few years it has been used to
authorise
![]()
deprivations
of liberty in a range of situations
covering
![]()
children
who are "looked after", those who are not, those who are under 16 and those over 16. It is not foreseeable – there are no
definitive
![]()
criteria
for its use laid out. Indeed, there are no reported
decisions
at present involving a
child
who is subject to a
care
order whose
deprivation
of liberty has been justified by reference to Article 5(1)(
d).
The approach taken by the President in In the matter of X and Y is to set out a series of procedural requirements within thecaselaw,
which reflect the procedural protections
contained
in the nearest
equivalent
statute (see para 49). There is
clearly
a
difference
between simply relying on an informal system of best interests
decision
making (as in HL
v
UK [2004]
ECHR
471),and an application to the
court
by the
local
![]()
authority
to obtain an order, which will then
contain
similar safeguards to the statutory scheme under s.25
CA
1989. The
ECtHR
has, however, never addressed whether such a system, in which a
court
application is required but where there is no statutory framework in place,
could
satisfy the requirements of Article 5. With the greatest respect, the Official Solicitor feels obliged to submit that
even
the use of the inherent jurisdiction in this manner may not be adequate to meet the
ECtHR's
requirement of legal
certainty.
The need for legal
certainty
has been recognised by Parliament in respect of incapacitated adults (by the insertion of sections 4A, 4B, 16A, and 21A of, and Schedules A1 and 1A to, the MCA 2005) and by the Government's request to the Law
Commission
to produce new
draft
legislation
covering
settings other than
care
homes and hospitals.
a.C's
![]()
confinement
at the unit
could
not be
authorised
and thus the
local
![]()
authority
![]()
could
not prevent him from leaving if he
chose
to
do
so;
b. thecourt
![]()
could
read
down
the secure accommodation regulations so as to treat the
current
placement as one being within the ambit of s.25
CA
1989; or
c.
the
court
![]()
could
![]()
exercise
the inherent jurisdiction to
authorise
his
deprivation
of liberty but provided 'fixed procedural rules' as required by the
European
![]()
Court
in HL
v.
UK (above).
Submissions – on behalf of C
"I am satisfied that the result which thelocal
![]()
authority
wishes to achieve
cannot
be achieved by the making of any other kind of order. Further, I am satisfied that, if the
court's
jurisdiction is not
exercised,
AB is likely to suffer significant harm. Absent a
deprivation
of liberty
authorisation,
AB's
continued
placement at X would be unlawful and in breach of Article 5. The
local
![]()
authority,
as a public body, is required by s.6 of the Human Rights Act 1998 not to act in a way which is incompatible with a
Convention
right. Accordingly, AB would have to move to another
establishment,
where he would not be under
constant
supervision and
control.
Such a move would not be in his welfare best interests and it is likely he would suffer significant harm as a result. AB, at this time, would not wish to move to another residential
establishment."
a. it has not beenestablished
that the young person is
deprived
of his liberty; or
b. he isdeprived
of his liberty but the
degree
of
confinement
and the restrictions imposed are not in his best interests and/or are not proportionate; or
c.
he is
deprived
of his liberty and the
degree
of
confinement
and the restrictions imposed are in his best interests and are proportionate.
In the event
the outcome is
either
(a) or (b), the
court
will not
exercise
its inherent jurisdiction but if the outcome is (
c),
the
court
is most likely to
exercise
the same.
'Freedom to leave' must beviewed
on a broad
canvas
in the
context
of a young person who is subject to a
care
order. As the Guardian points out [F19], no
child
who is subject to a
care
order is free to leave and live with whom they want to. If a
child
in
care
absconds the
carer
would inevitably
contact
the police. While it is acknowledged that the Supreme
Court
in
Cheshire
West
drew
attention to the need
compare
P's situation with that of someone of your age and station whose freedom is not limited (per Lord Kerr at [§77]), this
case
has the prospect of bringing within the purview of the non-statutory
DOLS
regime all
children
who live in
care
homes or are in foster
care.
![]()
The rules in "AH1" (except
items 9 to 11) are in
effect
standard house rules, with appropriate
contingencies
should [
C]'s
![]()
conduct
so require – for
example
item 7 'Internal
doors
are locked if [
C's]
behaviour requires this to happen'. Overall, the regime appears to be significantly less burdensome for [
C]
than was the
case
for the young person in Trust A
v
X and Others [2015]
EWHC
922 (
Fam).
![]()
It would appear from the statement of RosieEllington
![]()
dated
4 November
2016
[
C226-C235]
that, save as appears below, [
C]
is subject to the same rules as the other residents at ["N House]. The Guardian's understanding is that no other residents are the subject of an order for the
deprivation
of their liberty:
Staff know the whereabouts of [C]
at all times [all residents, save that [
C]
has 1:1 supervision but also times where he is shadowed].
a. Never left alone in the unit [all residents]
b. Never left alone with other residents [all residents]
c.
Subject to 1:1 staffing including breaks at school.
Constant
observations by staff no free time when not observed [
C
only; one other resident has 2:1 staffing]
d.
Unit locked at night [all residents, and not locked from the inside]
e.
Bedroom
door
alarmed at night to
ensure
privacy and to
ensure
whereabouts are known. Not allowed in other residents' bedrooms [all residents]
f. Internaldoors
are locked if [
C's]
behaviour requires this to happen [all residents]
g.Cannot
leave the unit by himself:
cannot
leave unaccompanied without permission. Police to be
called
if off site (and out of sight) without permission for more than 5 minutes [all residents]
h. Monitored at all off site activities; accompanied to recreational and socialevents
[[
C]
shadowed]
i. Not allowed any internet access, mobile phone numbercan
only be used to
dial
4 numbers [[
C]
only, but relaxed over the last few months]
j.Cannot
travel alone on public transport [all residents]
There is no basis forconcluding
that a Gillick-
competent
![]()
child
![]()
cannot
![]()
consent
to a
deprivation
of their liberty. It is helpful to note that the Official Solicitor agrees. Whether a
child
is able to
consent
will
depend
upon a professional judgment (legal or medical) as to whether they are Gillick-
competent
and has nothing to
do
with their
chronological
age: a 14-year-old may thus be
competent,
whereas a 17-year-old may not be. See the Law Society's publication "Identifying a
deprivation
of liberty: a practical guide" at para 2.18:
There have beenvery
few
decisions
identifying what is required to have
capacity
to
consent
to what would otherwise be a
deprivation
of liberty. In M
v
Ukraine[3], a
case
![]()
concerning
![]()
deprivation
of liberty in a psychiatric facility, the
ECtHR
held that: "… [T]he
Court
takes the
view
that a person's
consent
to admission to a mental health facility for in-patient treatment
can
be regarded as
valid
for the purpose of the
Convention
only where there is sufficient and reliable
evidence
suggesting that the person's mental ability to
consent
and
comprehend
the
consequences
thereof has been objectively
established
in the
course
of a fair and proper procedure and that all the necessary information
concerning
placement and intended treatment has been adequately provided to him."
It appears to have beenexpressly
![]()
contemplated
in Trust A (supra) that a
child
![]()
could
![]()
consent
to a
deprivation
of their liberty: '
D
is assessed by
Dr
K as not being 'Gillick'
competent
to
consent
to his residence and
care
arrangements or to any
deprivation
of liberty' (paragraph [19],
emphasis
added).
While it is recognised that theCourt
has the power to override the
decision
of a Gillick-
competent
![]()
child
in their best interests, this is generally
confined
to the situation in
extremis
where the
child
has for
example
refused life-sustaining treatment.[4]
DC
is
content
with an
enduring
state of affairs, namely the
current
arrangements for his accommodation, and he ought where possible to be afforded the autonomy of agreeing with them. His
competent
![]()
compliance
set his
case
apart from the
experience
of the
compliant
but incapacitated patient in In Re L (by his next friend GE); R
v
Bournewood
Community
and Mental Health NHS Trust,
ex
p L [1998] UKHL 24 whose situation ultimately spawned much of the
Cheshire
West jurisprudence.
It may instinctively seem offensive to permitchildren
to
consent
to the
deprivation
of their own liberty. In terms of permitting autonomy to
competent
![]()
children,
however, there is a powerful parallel under the scheme of the Mental Health Act 1983 ('MHA') - see the
Code
of Practice to the MHA at paragraph 19.65 (and 19.66 for
completeness):
Under 16s - Informal admission and treatment of under 16s who are Gillickcompetent
![]()
19. 65 Where achild
who is Gillick
competent
to
decide
about their admission to hospital for assessment and/or treatment of their mental
disorder
![]()
consents
to this, they may be admitted to hospital as an informal patient. A
child
who is Gillick
competent
and has
consented
to being admitted informally, may also be given treatment if they are
competent
to
consent
to the proposed treatment, and
do
![]()
consent.
![]()
Consent
will be required for
each
aspect of the
child's
![]()
care
and treatment as it arises. This will involve an assessment of the
child's
![]()
competence
to make the particular
decision
and, where the
child
is
competent
to
do
so,
confirmation
that they have given their
consent.
19.66 Where achild
who is Gillick
competent
refuses to be admitted for treatment it may be inadvisable to rely on the
consent
of a person with parental responsibility (see paragraph 19.39). In such
cases,
![]()
consideration
should be given to whether admission under the Act is necessary, and if so, whether the
criteria
are met. If the Act is not applicable, legal advice should be sought on the need to seek
authorisation
from the
court
before further action is taken.
It may becontended
by others that whereas the assessment of
DC's
![]()
competence
has been
carried
out by professionals (solicitor and Guardian) who are independent of the state system and 'on his side', no such guarantees of independent
verification
of Gillick-
competence
![]()
could
be given if the assessment process were left for
example
to social workers. Thus it might be argued that, to avoid the need for time-
consuming
and burdensome
court-based
scrutiny, an over-stretched social worker might be tempted to 'pass' a young person as Gillick-
competent
to make the
decision
to
consent
to the
deprivation
of their liberty, thus relieving that social worker or his/her
department
of the burden of
court-based
reviews.
That argument fails, if advanced: it would amount to saying that social workerscannot
be trusted to undertake a
careful
analysis of the
extent
to which a young person
can
truly
consent
to the
deprivation
of their liberty. The law has for many years provided that social work
departments
are
entrusted
with the task of implementing
care
plans which are far-reaching in their scope.
a.each
time the guardian has seen
C,
he understood and agreed to the restrictions that are placed upon him;
b. although he has pushed the boundaries, this is not to beequated
with a lack of
consent.
He has been willing to stay at the unit and to
engage
with the staff;
c.
it had not proved necessary to increase the restrictions to which he is subject; and
d.
taking a broad
view
he had lived at the unit for 19 months and
engaged
well with
difficult
and intrusive work. Moreover, this is the first
establishment
where
C
has made progress.
a. thecircumstances
in which
C
lives are
very
![]()
demanding
for a 15 year old and he
could
have '
voted
with his feet' but he has
chosen
not to
do
so;
b. there are no sustained breaches of the house rules nor a repeated pattern of breaches;
c.
he understands why the restrictions are necessary to protect him and others around him; and
d.
the unit undertook three monthly reviews of
C
![]()
case,
including his
confinement
and the restrictions to which he is subject, in
consultation
with the
local
![]()
authority.
Analysis
"Iconsider
that the Strasbourg
court
![]()
decisions
![]()
do
indicate that the twin features of
continuous
supervision and
control
and lack of freedom to leave are the
essential
ingredients of
deprivation
of liberty"
"It would, therefore, appear that, if the inference which Mrs. Gillick's advisers seek todraw
from the provisions is justified, a minor under the age of 16 has no
capacity
to
authorise
any kind of medical advice or treatment or
examination
of his own body. That seems to me so surprising that I
cannot
accept it in the absence of
clear
provisions to that
effect.
It seems to me
verging
on the absurd to suggest that a girl or a boy aged 15
could
not
effectively
![]()
consent,
for
example,
to have a medical
examination
of some trivial injury to his body or
even
to have a broken arm set…. It is, in my
view,
![]()
contrary
to the ordinary
experience
of mankind, at least in Western
Europe
in the present
century,
to say that a
child
or a young person remains in fact under the
complete
![]()
control
of his parents until he attains the
definite
age of majority, now 18 in the United Kingdom, and that on attaining that age he suddenly acquires independence. In practice most wise parents relax their
control
gradually as the
child
![]()
develops
and
encourage
him or her to become increasingly independent. Moreover, the
degree
of parental
control
actually
exercised
over a particular
child
![]()
does
in practice
vary
![]()
considerably
according to his understanding and intelligence and it would, in my opinion, be unrealistic for the
courts
not to recognise these facts. Social
customs
![]()
change,
and the law ought to, and
does
in fact, have regard to such
changes
when they are of major importance".
Lord Scarman concluded
that:
"In the light of the foregoing I would hold that as a matter of law the parental right todetermine
whether or not their minor
child
below the age of 16 will have medical treatment terminates if and when the
child
achieves a sufficient understanding and intelligence to
enable
him or her to understand fully what is proposed. It will be a question of fact whether a
child
seeking advice has sufficient understanding of what is involved to give a
consent
![]()
valid
in law. Until the
child
achieves the
capacity
to
consent,
the parental right to make the
decision
![]()
continues
save only in
exceptional
![]()
circumstances."
"In my judgment the Rule is sufficiently widely framed to meet our obligations tocomply
with both Article 12 of the United Nations
Convention
and Article 8 of the
ECHR,
providing that judges
correctly
focus on the sufficiency of the
child's
understanding and, in measuring that sufficiency, reflect the
extent
to which, in the 21st
Century,
there is a keener appreciation of the autonomy of the
child
and the
child's
![]()
consequential
right to participate in
decision
making processes that fundamentally affect his
family
life."
a. I would be surprised if a 15-year-old young mandid
not occasionally act as
C
has acted when living under such
close
supervision with such invasive restrictions to the
everyday
life that would be lived by a 15-year-old young man;
b.C
![]()
consents
to his living
circumstances
to a
degree
which amounted to him
consenting
to those restrictions which result in his
confinement
within the meaning of and satisfying the objective
criteria
of limb one of Storck;
c.
whilst he has from time to time breached the house rules, and has, for
example,
left the unit without permission, I note:
i) he has always returned to the unit of his ownvolition;
![]()
ii) he has never had to be returned by the police or undercoercion;
and
iii) he has never left the unit for a period of time thatcould
amount to absconding from the unit.
"It is in my judgment quiteclear
that a judge
exercising
the inherent jurisdiction of the
court
(whether the inherent jurisdiction of the
court
with respect to
children
or the inherent jurisdiction with respect to incapacitated or
vulnerable
adults) has power to
direct
that the
child
or adult in question shall be placed at and remain in a specified institution such as, for
example,
a hospital, residential unit,
care
home or secure unit. It is
equally
![]()
clear
that the
court's
powers
extend
to
authorising
that person's
detention
in such a place and the use of reasonable force (if necessary) to
detain
him and
ensure
that he remains there: see Norfolk and Norwich Healthcare (NHS) Trust
v
W [1996] 2 FLR 613 (adult), A Metropolitan Borough
Council
![]()
v
![]()
DB
[1997] 1 FLR 767 (
child),
Re MB (Medical Treatment) [1997] 2 FLR 426 at page 439 (adult) and Re
C
(
Detention:
Medical Treatment) [1997] 2 FLR 180 (
child)."
And in the case
of X (A
Child)
and Y (A
Child)
(Rev 1) [
2016]
EWHC
2271 (
Fam)
[
2016]
3 WLR 1718, where he said at paras 48 & 49:
"Since, as I have already observed, an order placing achild
in secure accommodation involves a
deprivation
of liberty, and thus
engages
Article 5 of the
Convention,
any judge making such an order in
exercise
of the inherent jurisdiction must
ensure
that both the substantive and the procedural requirements of Article 5 are
complied
with.
Wall J was alert to this (Ican
![]()
vouch
for the fact that he had been referred to the Strasbourg jurisprudence
even
although he
did
not refer to it
explicitly)
when he said this in Re
C,
pages 197-198:
" … the followingconsiderations
should be borne in mind by the
court
when
deciding
whether, and if so on what terms, to make an order under the inherent parens patriae jurisdiction
directing
the
detention
of a
child
in a specified institution …
(2) Thechild's
parents should be involved in the
decision-making
process and must be given a fair hearing by the
court.
(3) Any order thecourt
makes must be based upon and justified by
convincing
![]()
evidence
from appropriate
experts
that the treatment regime proposed
(a) accords withexpert
medical opinion, and
(b) is therapeutically necessary.
(4) Any order thecourt
makes should
direct
or
authorise
the minimum
degree
of force or restraint, and in the
case
of an order
directing
or
authorising
the
detention
of the
child
the minimum period of
detention,
![]()
consistent
with the welfare principle.
(5) Any orderdirecting
or
authorising
the
detention
of the
child
should
(a) specify the place where thechild
is to be
detained,
![]()
(b) specify (i) the maximum period for which thedetention
is
authorised
and, if thought appropriate, (ii) a
date
on which the matter is to be reviewed by the
court,
and
(c)
specify, so far as possible, a place whose location imposes the minimum impediments on
easy
and regular access between parents and
child.
(6) Any orderdirecting
or
authorising
the
detention
of the
child
should
contain
an
express
liberty to any party (including the
child)
to apply to the
court
for further
directions
on the shortest reasonable notice.
(7) Any orderdirecting
or
authorising
the
detention
of the
child
should, so far as practicable,
contain
supplementary
directions
![]()
designed
(a) to facilitateeasy
and regular access between parents and
child,
and
(b) to provide the same safeguards for thechild
and the parents as they would have if the
child
were
detained
in accordance with some analogous statutory regime …"
a. Limb one of Storck isestablished;
![]()
b.C
![]()
can
in law
consent
to his
confinement;
![]()
c.
![]()
C
![]()
does
in fact
validly
![]()
consent
to the same; and
d.
therefore the issue of the
court
![]()
authorising
his
confinement
under the inherent jurisdiction
did
not arise.
"C's
placement in the unit has and will be for the foreseeable future in his best interests. He has
clearly
benefited from his placement there, as I believe he has recognised. He has
established
a good working relationship with the staff. I hope
C
does
not interpret my
decision
as giving him free reign to
do
what he likes; I
very
much hope he will
continue
to work
cooperatively
with the staff at the unit for his long-term future benefit.
I do
not intend what I am about to say to be seen as a threat by
C,
but he must understand that were he not to
cooperate
or were he to withdraw his
consent
to his placement, it is inevitable that the
local
authority
will take action and make further applications to the
court
to secure his
compliance.
That said, I wish
C
all the
very
best for his future."
Note 1 P (by his litigation friend the Official Solicitor) Note 2 Regulation 3 provides that ‘Accommodation in a Note 3 [2012] Note 4 For v
Cheshire
West and
Chester
Council
[2014] UKSC 19 [Back]
children’s
home shall not be used as secure accommodation unless it has been approved by the Secretary of State for such use and approval shall be subject to such terms and
conditions
as he sees fit.’ [Back]
ECHR
732 [Back]
example:
Re
E (A Minor) [1993] 1 FLR 386 [Back]