Local authorities must consider whether looked-after children are being deprived of their liberty, but they cannot consent to the deprivation without applying to the High Court, a judge has confirmed.
A news bulletin from leading mental capacity law firm, 39 Essex Chambers, stated the potential number of children meeting the test, whose cases would now have to be transferred to the High Court, was likely to be “sizeable”.
It added that the judicial issues currently facing adults’ services around deprivation of liberty seemed likely to be heading towards children’s services.
The bulletin follows the case of a 14-year-old boy known as AB who was made subject to a child protection plan due to neglect, and was eventually moved to a residential children’s home after a foster carer could not cope with his sexualised behaviour.
AB had a moderately severe learning disability, ADHD and mental health needs, and was assessed by a social worker as lacking the mental capacity to make decisions.
AB was under observation every 15 minutes, was not allowed to leave the unit unaccompanied and was returned to his room by staff if he left it at night.
He was also not able to contact his family independently and was on sedative medication which acted as a “form of restraint”, Mr Justice Keehan said.
However, he was happy in the home and wanted to stay there.
Despite this, all of these circumstances meant he was being deprived of his liberty, Justice Keehan said.
When addressing whether local authorities could consent to the deprivation of liberty of a child in their care, the judge said his answer was “an emphatic ‘no’”.
Allowing a local authority to make these kinds of decisions would not properly safeguard the child and would not ensure their best interests were independently assessed.
Justice Keehan said a similar test as outlined in the Cheshire West judgment, which applied to adults who lacked capacity to make decisions and their deprivation of liberty, should also be applied for younger people.
This stated that a person was deprived of their liberty where they were under continuous supervision in, and were not free to leave, care arrangements that they lacked the capacity to consent to, and that were the responsibility of the state.
A person’s compliance or lack of objection to their placement was irrelevant to whether they were deprived of their liberty, under the ‘acid test’ set out in Cheshire West.
The Cheshire West judgment has thrown the adult social care sector into turmoil by, in effect, lowering the threshold for what constitutes a deprivation of liberty. Such deprivations must be authorised in law; for adults, this is through the Deprivation of Liberty Safeguards, for care arrangements in care homes or hospitals, or through the Court of Protection for people in community-based settings.
Polly Sweeney, a lawyer specialising in mental capacity and deprivation of liberty cases in the Court of Protection, said this would undoubtedly have implications for children’s social workers.
Developing area of law
“Although the legal principles will be familiar to those in adult social care, the deprivation of liberty of children is still very much a developing area of law.
“My experience is that at present, social workers and practitioners are not considering, as a matter of course, whether arrangements for children in need and looked after children’s accommodation amount to a deprivation of liberty.”
Justice Keehan referred to a previous case, concerning a child known as D, in which he had decided the same test that would be applied to a person over 16 should be considered for a 15-year-old.
He said in that case: “When 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 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.”
He reiterated it would be a deprivation of liberty if someone was 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.
“The fact 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,” he reminded the court.
There are some instances where it would be appropriate for a parent to consent to their child being deprived of their liberty, for example hospitalisation in a psychiatric unit, when it is in their best interests, and with the agreement of professionals.
However, the judge said it was “difficult to conceive” of a set of circumstances where it would be appropriate for a parent whose child was subject to a care order to be able to consent to a deprivation of liberty.
“This parent’s past exercise of responsibility will have been seriously called into question and it would not be right or appropriate to permit such a parent to consent,” he said.
The judge authorised AB’s deprivation of liberty at his current placement, but reminded authorities where a child is looked-after it is extremely unlikely their parents could consent to a deprivation of liberty. In those circumstances, a local authority cannot consent either and an application to the court must be made.