Public Law

Update on DOLS Cases Relating to Children and Young People27.11.18

Update on DOLS cases relating to children and young people: November 2018

1. There have been a number of significant cases over recent months that have considered matters relating to the deprivation of liberty of a child (see summaries and links below).

These include:

  • Re Re A-F (Children) [2018] EWHC 138 (Fam)
  • Re A-F (Children) (No 2) [2018] EWHC 2129 (Fam).
  • Re RD (Deprivation or Restriction of Liberty) 2018 EWFC 47
  • Re T (A Child) [2018] EWCA Civ 2136
  • Re HC (A Minor Deprivation of Liberty) [2018] EWHC 2961 (Fam)

2. In addition, this month Mr Justice Mostyn, with the agreement of the President of the Family Division, Sir Andrew McFarlane, has issued three new standard orders in relation to the deprivation of liberty of a child.

The orders are those that were proposed by the former President of the Family Division, Sir James Munby, in July 2018 as an annex to his judgment in Re A-F (Children) (No 2).

The new orders are:

  • Standard order 23.1 – directions on issue and allocation
  • Standard order 23.2 – directions on first hearing
  • Standard order 23.3 – order on final hearing

Download Orders here [Zip file]

Re A-F (Children) [2018] EWHC 138 (Fam)

Sir James Mumby considered the cases of seven children, aged between 11 years and 16 years, who were all the subject of applications for a final care order. The court was asked to determine at what point in a child’s development could the supervision and control of a child be defined as ‘confinement’ and thereby satisfy the ‘acid test’ in Cheshire West, Storck component (a) and Article 5 ECHR to be a deprivation of their liberty.

The judgment was that ‘confinement’ is to be decided on a case by case basis, comparing the restrictions to which each child is subjected to in care with those that would apply to a child of the same “age”, “station”, “familial background” and “relative maturity” who is “free from disability” and living at home.

Para 43  “…[T]he best I can do, by way, I emphasise, of little more than ‘rule of thumb’, is to suggest that: (i) A child aged 10, even if under pretty constant supervision, is unlikely to be “confined” for the purpose of Storck component (a). (ii) A child aged 11, if under constant supervision, may, in contrast be so “confined”, though the court should be astute to avoid coming too readily to such a conclusion. (iii) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion.”

The judgment details the process that should be followed in applying for an order to authorise a child’s deprivation of liberty at the placement if this is thought to be necessary; the evidence to be produced; and the considerations to be made regarding the interface between on-going care proceedings and an application for an authorisation of a deprivation of liberty.

Re A-F (Children) (No 2) [2018] EWHC 2129 (Fam)

This second hearing was held to make final orders and propose standard forms that could be used in such cases in the future. These have recently been introduced as Standard Orders 23.1 – 23.2 (see above).

Re RD (Deprivation or Restriction of Liberty) 2018 EWFC 47

Cobb, J considered whether the supervision arrangements of a 14 ½ year old girl (RD) in a residential placement amounted to ‘complete supervision and control’ such that she was deprived of her liberty and her Article 5 ECHR rights were engaged.

He found that the degree and intensity of the supervision of RD, and the restrictions placed upon her by the unit, were no greater than those that may be applied to a child of a similar age and maturity who lives at home. It was determined that these did not amount to a deprivation of her liberty and her Article 5 rights were not engaged.

Re T (A Child) [2018] EWCA Civ 2136

There are two parallel processes for the authorisation of the placement of a young person in secure accommodation: s25 Children Act (CA) 1989 and the inherent jurisdiction. This appeal concerned whether a lack of valid consent was required to exercise the inherent jurisdiction to authorise the restriction of the liberty of a 15 year old in a placement. The unit was not authorised as secure under s25 CA but the restrictions of the regime were ‘equivalent’. The young person was considered to be Gillick competent and consenting to the restrictions of their liberty.

It was held that a lack of valid consent is not a pre-requisite for a statutory secure accommodation order or for the High Court to exercise its’ inherent jurisdiction. The existence or absence of consent may be relevant as to whether the restrictions amount to a deprivation of liberty under Article 5 ECHR, but that is independent of the court authorising placement in secure accommodation, registered or otherwise.

Re HC (A Minor Deprivation of Liberty) [2018] EWHC 2961 (Fam)

A local authority applied for a determination as to whether a residential placement under a care order for a 13 year old boy (HC) constituted a deprivation of his liberty and if it did, for the court’s authorisation, by way of declaratory relief pursuant to the inherent jurisdiction. It was suggested that the restrictions that are specifically imposed on HC at the unit crossed the Article 5 ECHR threshold.

The judgment sets out in detail the applicable law when considering whether a placement constitutes the deprivation of liberty of a child, and the authorisation of any such a deprivation. It was held that, compared to a teenager living at home with his family, the restrictions experienced by HC, including 1:1 ‘eyes on’ staffing when he is awake, mean that he is under constant supervision and control. The deprivation of his liberty was authorised as being necessary, proportionate and in HC’s best interests.

Barbara Green – Spire Barristers