by Neil Allen, barrister at 39 Essex Chambers
The significance of deprivation of liberty for children’s and transition services became clear in March 2014 when the Supreme Court delivered its Cheshire West judgment (P v Cheshire West and Chester Council and P & Q v Surrey County Council ).
In this, the court decided that three people were deprived of their liberty, one of whom, ‘MEG’, was 17 at the relevant time being considered by the court. She had a mild learning disability, and was accommodated in an NHS residential unit for those with complex needs under a care order.
‘MEG’ was under continuous supervision and control, not free to leave, and lacked capacity to consent – the core elements of the ‘acid test’ for a deprivation of liberty set out by the Supreme Court. Both her mother and Surrey County Council agreed to her being there.
Case summary Birmingham City Council v D (2016)
A quick guide to deprivation of liberty of 16-17 year olds
But such consent by those sharing parental responsibility did not prevent her care arrangements amounting to a deprivation of her liberty. Her extreme vulnerability required independent periodic checks on her welfare. Factors that had been considered by the courts below – whether she complied or objected, the relative normality of the placement, and the reason or purpose for it – were irrelevant in determining deprivation of liberty, ruled the Supreme Court: a “gilded cage is still a cage”.
Human rights protections
Article 5 of the European Convention on Human Rights protects the right to liberty and security of person. No person – of any age – shall be deprived of their liberty unless (a) it is justified on a ground specified in Article 5, such as being of “unsound mind”, and (b) it is done in accordance with an Article 5-compliant legal procedure.
This provides safeguards, including that a person is entitled to have the lawfulness of their detention decided speedily by a court. Recognising that a child can be deprived of liberty calls for increased scrutiny as to the basis of such detention, and additional safeguards are necessary to prevent the arbitrary use of power by carers.
Identifying when child care deprives liberty is not easy. All children are, of course, subject to certain universal constraints. Without them, those with parental responsibility would be prosecuted for neglect or ill-treatment. But the law expects those constraints to lessen as the child matures to adulthood. The Law Society has produced guidance to assist and much will depend upon the extent to which the degree of care and support for the person with disability departs from the ‘norm’ for a person of that age without disability.
So the greater the deviation from the typical freedoms expected by someone of that age and relative maturity who is free from disability, the more likely the disabled child or young person is to be deprived.
How the law is developing
Two judgments in the past year concerning a boy referred to as ‘D’ illustrate how the law in this area is developing. He has ADHD, Asperger’s and Tourette’s syndrome.
The first judgment – in Re D (A Child; deprivation of liberty)  EWHC 922 (Fam) – concerned the time when he was 15, and was informally accommodated in a psychiatric hospital for a multi-disciplinary assessment and treatment. The unit was locked and he was observed every 30 minutes. He could not go out without staff or family with him and lacked capacity to consent. He enjoyed residing there. This amounted to confinement and was justified by his erratic, challenging and potentially harmful behaviour.
The judge, Mr Justice Keehan, ruled that his parents could consent on his behalf because he was under 16 and to do so was an appropriate exercise of parental responsibility. The judge found that confining a 15-year-old boy who did not suffer from the conditions with which D was diagnosed would constitute an inappropriate exercise of parental responsibility. But in the case of D, given his erratic, challenging and potentially harmful behaviour, it was appropriate. Their consent meant that what otherwise would have been a deprivation of liberty, was not one.
By the time of the second judgment (Birmingham City Council v D  EWCOP 8), D had turned 16. He had been discharged from hospital to a self-contained residential unit at a placement set within its own grounds, funded by the local authority, with his parents’ consent under section 20 of the Children Act 1989.
The garden was fenced. He lived there with three others and had his own bedroom. The external doors were locked and he could not leave unless it was a planned activity. He had one-to-one support throughout the day and staff were around at night. He attended school on site every weekday until 2pm. After lunch he returned to the unit for leisure activities. Every Thursday he went swimming. Every Saturday he saw his parents. But now he was 16 years old. Mr Justice Keehan decided that he was deprived of his liberty.
He said:“I have come to the clear conclusion that however close the parents are to their child and however cooperative they are with treating clinicians, the parent of a 16 or 17 year old young person may not consent to their confinement which, absent a valid consent, would amount to a deprivation of that young person’s liberty.”
16 and 17 year-olds
The judge stressed that Parliament had drawn a distinction between young people aged 16 or 17 and those who are younger. Notably, the Mental Capacity Act 2005 applies to those aged 16 and above. Significantly, however, the 16-year-old watershed does not apply where the child is under an interim or final care order. Here, the local authority cannot consent to the confinement of a child of any age because there is a lack of proper safeguards.
Child care reviews, for example, are not sufficiently independent of the state to satisfy the demands of Article 5, as Mr Justice Keehan set out in a different case last year (A Local Authority v D  EWHC 3125 (Fam)). Secure accommodation orders, under section 25 of the Children Act, provide an Article 5-compliant way of authorising a deprivation of liberty of a looked-after child. But these only apply to children who, without the order, would be likely to injure themselves or to abscond and thus suffer significant harm.
Recognising the role of Article 5 in child care will have significant consequences. Put simply, if a care regime, which amounts to a deprivation of liberty, is not justified and/or not authorised by a legal procedure, there is a human rights violation.
There are likely to be many children and young people with disability deprived of liberty without lawful authority in foster homes, children’s homes, care homes, residential special schools, boarding schools, further education colleges with residential accommodation, hospitals and elsewhere.
Unless the Children Act 1989 is amended to include another Article 5-compliant procedure besides secure accommodation orders, authorisations by the courts will be required, either under the inherent jurisdiction of the High Court or, for those aged 16 or 17, by the Court of Protection. And the cost of providing such safeguards is ultimately a matter for the government.
As Mr Justice Keehan said in his second judgement in relation to D: “The protection of the human rights of those with disabilities or the vulnerable members of our society, most especially in respect of the protection afforded by Article 5 (1), is too important and fundamental to be sacrificed on the altar of resources.”
Summary: How deprivations of liberty must be authorised
- Under 16s who are confined and unable to consent: parents can give valid consent if that is an appropriate exercise of parental responsibility.
- Those of any age under an interim/final care order who are confined and unable to consent: Article 5 safeguards are required.
- 16- and 17-year-olds who are confined and lack capacity to consent: Article 5 safeguards are required.
- Those under 18 who are able to make the relevant decision and object to their confinement: Article 5 safeguards are required.
Neil Allen is a barrister at 39 Essex Chambers and a lecturer at the University of Manchester.