Funding for respite service

February 23rd, 2018 by James Goudie QC in Social Care

In R (Juttla) v Hertfordshire Valleys Clinical Commissioning Group (2018) EWHC 267 (Admin) Mostyn J set aside the resolution made by the Defendant on 16 November 2017 to remove funding of £600,000 annually from Nascot Lawn in Watford (a respite service for children with complex medical needs) with effect from 16 May 2018. The consequence is that the Defendant must now comply with its legal duty formally to consult Hertfordshire County Council (HCC) about its proposal to withdraw that funding.

The Defendant maintained that it was not funding a “health service” within the terms of Sections 3 and 3A of the National Health Service Act 2006. The Judge ruled however that the services provided at Nascot Lawn are health services.  That being so, Regulation 23 of the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 (SI 2013 No. 218), falls within Part 4 of the Statutory Instrument which is entitled “Health Scrutiny by Local Authorities”. That Part establishes a scheme whereby local authorities will be fully and formally consulted on any major health service changes in their area, will have the opportunity to scrutinise them, and in the absence of agreement will have the opportunity of seeking redress from the Secretary of State. Read more »


Air Quality

February 22nd, 2018 by James Goudie QC in Planning and Environmental

 In R (Client Earth) No. 3 v SoS for the Environment (2018) EWHC 315 (Admin) Garnham J held (paragraphs 80 and 104) that the DEFRA 2017 Air Quality Plan, in its application to 45 local authority areas, does not contain measures sufficient to ensure substantive compliance with Directive 2008/50/EC and the implementing 2010 English Regulations.


Succession to secure tenancy

February 21st, 2018 by James Goudie QC in Housing

In Haringey LBC v Simawi (2018) EWHC 290 (QB) the Council refused to allow the Defendant to succeed to a secure tenancy on the basis of the “no second succession rule”.  The Defendant contended that this rule, contained in Sections 87-88 of the Housing Act 1985 (“HA 1985”), is incompatible with Articles 8 and 14 of the ECHR. In summary, it was contended that the relevant sections of  HA 1985 treat differently a tenant whose partner dies and a tenant whose marriage/civil partnership with his/her partner had broken-down. In the former case, the tenant is treated as a successor under Sections 87-88 of HA 1985. In the latter case, if the tenancy was assigned under a property assignment order made in matrimonial proceedings, then the person remaining in residence would become a tenant de novo. In consequence, the Defendant contended that a child who would otherwise satisfy the succession requirements of HA 1985 is treated less favourably if his/her parent was a sole tenant because of death than as a result of relationship breakdown. Read more »


Planning Impacts

February 19th, 2018 by James Goudie QC in Planning and Environmental

Limiting carbon emissions in an effort to arrest global warming and climate change is a major policy objective of the government. EU law and national law, in the form of the Climate Change Act 2008, impose challenging national targets to reduce carbon emissions and seek to encourage a shift to utilising renewable sources of energy. That policy objective is also carried into Section 10 of the NPPF, headed “Meeting the challenge of climate change, flooding and coastal change”.

On 18 June 2015 a written ministerial statement (“the Statement”) was made by the SoS for CLG. It set out new considerations touching applications for planning permission for wind turbines.  The Statement included that in specified circumstances LPAs can find for a proposal, if following consultation, they are satisfied it has “addressed” the planning impacts identified by affected local communities and therefore has their backing.  The Statement is a “material consideration” for the purposes of Section 38(6) of the Planning and Compulsory Purchase Act 2004.  It is capable of outweighing policy in the development plan for the area.

In R (Holder) v Gedling Borough Council (2018) EWCA Civ 214 the Appellant challenged the grant by the Council of planning permission for the construction of a wind turbine. The LPA had concluded that the development was in accordance with the guidance in the Statement because the planning impacts were sufficiently “addressed” to sustain the conclusion that the proposal had local backing.

The issue is whether the Council had correctly interpreted the Statement, or whether, as the Appellant contended, a planning impact can be “addressed” only if it is eliminated or resolved. The Court of Appeal held that the Appellant’s contention was wrong and the Council had not misinterpreted the Statement. The Appellant’s contention was contrary to the natural meaning of the language used in the relevant part of the Statement, especially when it is read in the context of the Statement as a whole and in the wider legislative and policy context.

The Lord Chief Justice, delivering the Judgment of the Court, said:-

“21.      The Statement does not provide a test for what is to count as the relevant local community in relation to any particular development. That will depend on the facts of the case and the planning judgment of the local planning authority. …

  1. In our view, the natural meaning of the relevant phrase in the last sentence of the Statement is that a local planning authority can find the proposal acceptable if it has sufficiently addressed the planning impacts identified through consultation with the relevant local community to the extent that it can properly conclude, in the exercise of its planning judgment, that the balance of opinion in the local community is likely to be in favour of the proposal.
  2. The more stringent interpretation of the final paragraph of the Statement urged on us …is not tenable. … it would effectively involve reading the word “addressed” to mean “resolved” or “eliminated”. The usual position when considering an application for planning permission is that a range of potential benefits has to be weighed against a range of incommensurable potential detriments. It is rarely the case that it can be said that every potential detriment has been eliminated, as opposed to being mitigated and outweighed by countervailing benefits.
  3. Therefore, in the planning context the natural meaning of “addressed” is “sufficiently addressed”; that is to say, sufficiently addressed by taking into account mitigating factors and countervailing benefits. If the drafters of the Statement had intended the stronger meaning urged …, there is little doubt they would have used appropriate stronger language to make that clear.
  4. Further, Mr Harwood’s proposed interpretation of the Statement impermissibly removes the word “addressed” from the immediate context of the sentence in which it appears. According to the Statement, a planning authority can find a proposal acceptable if they are satisfied that it has addressed the planning impacts identified by the affected local community and therefore has their backing.
  5. A local community will comprise people who are likely to have a range of views in relation to a proposal along a spectrum, perhaps ranging from strong opposition on grounds that can never be assuaged to strong support, with many people somewhere in the middle with views that are capable of being affected by steps taken to mitigate or reduce the impact of a particular proposal on the local area. Some may have made representations to the planning authority in response to the consultation exercise contemplated by the Statement, either in favour of the proposal or against it; but it will often be the case that many members of the local community will not have done so. The planning authority therefore has to make a judgment, taking account of the representations received and assessing the weight and significance of any objections raised, as to where the balance of opinion is likely to lie within the local community as a whole, including its members who have not made representations. Where, for example, issues are raised by some objectors regarding impact on visual amenity – as will almost invariably be the case – the planning authority may take account of the numbers raising that issue (and the numbers not raising it) in the representations received. They may also make an assessment of the seriousness of the visual impact and whether sufficient steps of mitigation or local screening may have been taken so as to minimise the impact to a degree where it can be satisfied that the balance of view within the local community as a whole is to regard the proposed development as acceptable and worthy of their backing.
  6. Assessment of the balance of view within the local community as a whole, including those who do not make representations but who can be presumed to be reasonable members of the public, means that the planning authority will inevitably have to consider whether planning impacts mentioned by some members of the local community have been sufficiently addressed by the proposal. The authority will consider measures, including careful siting and mitigation of impact by screening, and make a judgment about whether they can be satisfied that the balance of view within the local community as a whole is positive. The balance of view in the local community as a whole may well be positive, even though some planning impacts have not been wholly eliminated (but only sufficiently dealt with) and even though some members of the local community may never be persuaded to view the proposed development in a favourable light.
  7. The nature of the assessment to be made by the local planning authority is a strong indication in favour of the interpretation of the last paragraph of the Statement we have set out above and against the interpretation proposed by Mr Harwood. Put another way, the Statement does not elevate those members of the local community who have views which are the most vehemently opposed to a proposal into the arbiters of the view of the local community as a whole.
  8. Our interpretation of the last paragraph of the Statement is also strongly supported by consideration of the wider context of the Statement.
  9. In the opening paragraph of the Statement, the Secretary of State says that it is intended to give local people “the final say” on wind farm applications. In the second paragraph he refers to a limited number of consequential changes to planning guidance, but the main provisions of national policy set out in section 10 of the NPPF are left unaltered. Both these points are significant.
  10. Although the Statement is intended to be additional policy guidance which may well affect planning decisions, it is plainly not intended to be completely at odds with national policy in relation to renewable energy nor with policies in local plans made in conformity with paras. 94 to 96 of the NPPF to promote the use of renewable energy. The appellant does not suggest that it completely supersedes or in some way trumps all other planning guidance. Yet if the Statement were interpreted as proposed by the appellant, then whenever an objector in the local community referred to a negative planning impact from a proposal which could not be completely eliminated (such as is likely to be the position with impact on visual amenity in almost every case involving proposed wind turbine developments in the countryside) the local planning authority would be forced to weigh the Statement against other very weighty factors in national and local policy in favour of the proposal. The likely result would be that in many cases the Statement, as so interpreted, would be outweighed and would be overridden. That would mean that the apparent assurance given by the Secretary of State in the Statement would frequently turn out to be hollow. The Secretary of State cannot have intended that the Statement should have a meaning which would have this result.
  11. Conversely, if the Statement is given the interpretation for which he appellant contends, in many more cases than on our interpretation it will come into conflict with national policy and local policy in favour of renewable energy. In some of that wider range of cases local planning authorities may apply the Statement and treat national policy and local policy as overridden. This would have the effect of undermining national and local policies to a significantly greater degree that the Secretary of State can have intended. It is clear from the second paragraph of the Statement and the absence of any change to section 10 of the NPPF that the Secretary of State intended that the Statement would have a much more modest impact on existing national and local policies than this. The interpretation we favour locates the statement in its proper place in the range of applicable policies.
  12. Further, the language of the transitional provision in the last paragraph of the Statement is in marked contrast to that in the second bullet point, setting out the Secretary of State’s substantive new policy governing future planning applications. For such planning applications, the onus is on an applicant for planning permission, or a local planning authority which proposes to grant permission, to “demonstrate” that the planning impacts identified by affected local communities “have been fully addressed …”; rather than, when the transitional provision applies, the local authority merely having to be “satisfied [the proposal] has addressed the planning impacts”, with the consequence that it has the backing of the local community. This difference in drafting again indicates that the word “addressed” in the transitional provision simply means “sufficiently addressed”, not “eliminated” or “resolved”. The stronger language used in the second bullet point indicates that in relation to planning applications made after the Statement was made, the local planning authority has to be satisfied to a higher level of confidence, as compared with the approach in transitional cases, that its assessment that there is a balance of view in the local community as a whole which is favourable towards the proposal is justified. There remains a judgement to be made which recognises that some objections are not capable of being eliminated altogether.”



Adequacy of damages

February 16th, 2018 by James Goudie QC in Decision making and Contracts

In the public procurement case of Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform 2018/20, the Irish Court of Appeal declined to lift an automatic suspension, holding that (1) the claimant could obtain only Francovich damages, (2) damages were therefore not an adequate remedy for the claimant, and (3) the fact that damages are not an adequate remedy may well be decisive in terms of evaluation of where the greatest risk of possible injustice and the balance of convenience lies.



ECHR Article 1/1

February 15th, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (Mott) v Environment Agency (2018) UKSC 10 the Supreme Court ruled that in the case of “control” short of “expropriation” consideration must be given to whether the effects are “excessive and disproportionate” (para 32), drawing a “fair balance” between public and private interests (para 33), and that compensation is potentially relevant (paras 33-35). Nonetheless (para 37), (1) the national authorities have a “wide margin of discretion” in the imposition of necessary environmental controls, (2) A1/P1 of the ECHR gives “no general expectation of compensation for environmental effects”, and (3) where an authority has given proper consideration to the issue of “fair balance”, the Courts should give weight to their assessment.



Automatic Suspension

February 12th, 2018 by James Goudie QC in Decision making and Contracts

Lancashire Care NHS Foundation Trust v Lancashire County Council (2018) EWHC 200 (TCC) concerns yet another application to lift an automatic suspension on the award of a contract imposed by virtue of the claimants issuing a claim form, within the necessary time period, challenging the results of a procurement exercise for that contract in which they were unsuccessful. Fraser J refused to lift the automatic suspension.

The procurement the subject matter of these proceedings concerns Public Health and Nursing Services to be provided to children and young persons from birth up to the age of 19, including services that concern children and adolescent mental health, across the county of Lancashire. It therefore involves a sizeable population and includes some of the most vulnerable members of society. The procurement exercise and the contract are both subject to the Public Contract Regulations 2015 (“the Regulations”).

The two claimant trusts (“the Trusts”) are the incumbent providers of these services to the Lancashire County Council (“the Council”) and there can be no question of there being any interruption in the provision of these services. Apart from any other considerations, the Council is statutorily obliged to provide such services to the residents of Lancashire under the Health and Social Care Act 2012, and will and must continue to do so. These services are being provided now by the Trusts and the contracts under which they do so expire on 31 March 2018. Were it not for the automatic suspension, from 1 April 2018 onwards (for a five year term) these services would be provided by the winning bidder in the procurement exercise the subject of these proceedings, namely Virgin Care Services Ltd (“Virgin”). Only the Trusts, and Virgin, bid for the supply for the Services in the procurement exercise.

Fraser J, from paragraph 14 of his Judgment, recited the legal principles. He stated, at paragraph 16, that the principles to be applied on such an application are widely accepted as being analogous to those that are applied on an application for an interim injunction. This test therefore now, under the Regulations, explicitly incorporates the American Cyanamid principles as summarised by Coulson J in Covanta Energy Ltd v MWDA [2013] EWHC 2922 (TCC).  The first question is whether there is a serious issue to be tried. If there is, then there are two further questions: namely whether damages are an adequate remedy for a party who was injured by the grant or the failure to grant the injunction, and the more general question as to where the balance of convenience lies. These two questions have to be considered in stages because the relevance of the availability of an adequate remedy in damages, either to the claimant seeking the injunction or to the defendant in the event that an injunction is granted against him should always be considered first. The public interest should be taken into account as part of the balance of convenience.

The court must assess whether it is just, in all the circumstances, that the claimant be confined to his remedy of damages. In Group M UK Ltd v Cabinet Office (2014) EWHC 3659 (TCC) Akenhead J held that it must be legitimate, when considering all interests likely to be harmed, to have regard to whether, if the lifting of the suspension were to be ordered, the claimant would be left with a remedy, “and that must include an effective remedy”. In that context a novel point arose. A claimant no longer has an automatic right to damages since the decision of the Supreme Court in Nuclear Decommissioning Agency v Energy Solutions EU Ltd [2017] UKSC 34. To what extent, if at all, can and should this be addressed when considering the adequacy of damages?  If a breach has to be “sufficiently serious” to qualify as satisfying the second Francovich condition, to give an entitlement to damages, how (if at all) is that to be taken into account when the court is faced with an application to lift the automatic suspension where adequacy of damages is a consideration?

This point was not fully argued before Fraser J on the Council’s application, and in the particular circumstances of this case it was not necessary for it to be fully argued. Both parties were agreed that at an interlocutory stage of a case – and in particular, at the interlocutory stage in this particular case on these particular facts – the court could not come to a decision on the question of whether the alleged breaches were or could be classified as “sufficiently serious”. Both parties were agreed that the point should be taken into account when considering the question of adequacy of damages as presenting an additional requirement which any claimant had to satisfy to recover damages at all.

The Council argued that because no procurement competition was conducted for the current supply of the services by the Trusts (even though a contract was entered into between the Council and the Trusts), then there are residuals doubts or concerns about the legality of the Council using the Trusts to continue to provide these services if the automatic suspension is not lifted. These doubts, which are essentially to the effect that the Council ought already to have conducted an open competition and are concerned that they did not do so, will only be magnified (or continued) if the Court leaves the automatic suspension in place. A different way of expressing this same concern is to state that the Council is extremely reluctant to operate the contractual option as that will continue the current unsatisfactory state of affairs.

Fraser J dealt with this point first. He said that there were a number of answers to it, and they all arrive at the same point, namely a conclusion that there is nothing in this argument. These included that continuing the existing current provision of the services by the Trusts for a short time pending a legal challenge to the procurement exercise, whilst the Council is under an automatic suspension imposed by the Regulations themselves, could be said to be a breach of the Regulations. This would be the case whether there was a contractual option within the existing contractual obligations which can be exercised or not. The suspension is imposed specifically by the Regulations if a claim form is issued within a particular period. Those same Regulations set out the circumstances in which that suspension can be lifted. If those circumstances, in any particular case, do not justify at law the lifting of the suspension, then the suspension must continue as a result of lawful operation of the Regulations themselves. Fraser J could not see how that can lead to a breach of the Regulations.

There was also a further point. It would be odd (to say the least) that if the Council were in breach of its legal obligations in awarding the existing contracts to the Trusts, it could rely upon its own breach in this respect and be in a stronger position concerning its application than if it had not been in breach of the Regulations in the first place.

Fraser J, at paragraph 37, rejected any submission that a failure to lift the automatic suspension would lead the Council to be acting unlawfully. There was an associated point. The Council argued that a failure to lift the suspension would mean that the Council had to continue in contractual relations with two Trusts with whom it was in litigation. That was the case, but again, Fraser J regarded this is a point of no import. He had no doubt that healthcare staff are sufficiently professional that a procurement dispute in the Technology and Construction Court in London would not affect the day to day provision of healthcare services to children in Lancashire, or the relations between the parties at operational level.

Fraser J’s analysis was that there was a serious issue to be tried. This therefore meant that the next steps in the process had to be addressed. The correct approach was firstly to decide the question of whether damages would be an adequate remedy.

Fraser J said, at paragraph 39:-

“39.      In my judgment, the fact that the incumbent providers of the Services are NHS Trusts is an important factor. Any incumbent provider of any service who is then unsuccessful in a procurement competition for those services will face inevitable reorganisation of its business as a result of that lack of success. Such reorganisation will (very often but not invariably) involve redundancies. However, here, the reorganisation is not just to the staff, or even in relation to the provision of Services to children. The evidence served for the Trusts makes it clear that the Trusts only recently restructured their operations to deliver these Services, and if they lose the procurement the Trusts will have significantly to restructure their operations a second time. This is a restructuring of delivery of healthcare across the population, and what are called “pathways” which are delivery routes through which healthcare is supplied. In addition to the cost and disruption that will cause – which I find would be considerable — the loss of the Contract will make it more difficult for the Trusts to deliver other similar public services which they are contracted to deliver, and these will require new pathways to care to be developed. All of this reorganisation is different to the staff situation, which in a sense is inevitable (or to put it another way, is an inevitable consequence for any incumbent bidder of having lost the bid). The impact upon the provision of healthcare as a whole to those in the catchment areas of the two Trusts is said to be considerable and I accept that.”

There would be a significant impact upon the operational activities of the two Trusts, and as a result, upon the quality of healthcare generally which they provide. Fraser J found that damages would not be an adequate remedy for the Trusts. This is the same result whether that question is considered first in isolation, or whether the same point is approached as an issue of the justness, in all the circumstances, of the Trusts being confined to their remedy of damages. The answer is one favourable to the Trusts on this application whichever way it is framed.

On the other hand, damages would be an adequate remedy to the Council. Given the very slim difference in the costs of provision of the Services by the Council compared to Virgin, the successful bidder, the financial differential would in any event either be small or non-existent. But even if that were not the case, the actual services would remain uninterrupted up to the date of the judgment in the proceedings, and there would be essentially an accountancy-type exercise to compare and compute the financial loss after a trial. That is an entirely different matter, and of a different nature, to the damage that would be caused to the Trusts were the suspension to be lifted and the Trusts succeed at trial.

Fraser J considered the inadequacy of damages to the Trusts to be conclusive on this application. Moreover the balance of convenience was overwhelmingly in the Trusts’ favour. The only point in the Council’s favour is its stated intention and preference to bring Virgin on board as soon as possible, together with the mobilisation period required by that provider. Given the nature of the Services, their subject matter, and the sector of the population for which they are provided (the children and young people of Lancashire) and the importance to the public interest of these Services, a desire by the Council to get on with the new contract (although entirely understandable) did not weigh much in the balance. Maintaining the suspension was a course that had “the least risk of injustice”. There will be no break at all in the provision of the Services as the Trusts will continue to provide them, and have undertaken to do so. The least risk of injustice was clearly to maintain the automatic suspension. The application by the Council to lift the automatic suspension therefore failed.



February 8th, 2018 by James Goudie QC in Decision making and Contracts

The General Power of Competence (“GPOC”) in Section 1 of the Localism Act 2011 (“LA 2011”) and its exclusion, by Section 4 of LA 2011, when an authority is acting “for a commercial purpose”, but not through a limited company, has been considered in Peters v Haringey LBC (2018) EWHC 192 (Admin). The case is concerned with the Haringey Development Vehicle (“the HDV”).  The purpose of the HDV is to create a partnership, by way of a limited liability partnership (“LLP”), between the Defendant Council, and a private sector body, Lendlease, and to bring private sector finance, experience and expertise to the task of developing the Council’s land for its better use, and so achieving the Council’s strategic aims in housing, affordable housing and employment. The Claimant challenged by way of judicial review a decision made by the Council through its Cabinet, on 20 July 2017, to confirm Lendlease after a procurement process as the successful bidder to become the Council’s partner in the HDV, and also approved the structure of the HDV. Read more »



February 5th, 2018 by James Goudie QC in Social Care

Re A-F (Children) (2018) EWHC 138 (Family) is a number of test cases listed before the President of the Family Division, Sir James Munby. They raise various substantive and procedural questions in relation to the interface between care proceedings brought in the Family Court pursuant to Part IV of the Children Act 1989 and the requirements of Article 5 of the Convention, specifically, the circumstances in which Article 5 is engaged in relation to a child in the care of the local authority and, where Article 5 is engaged, what procedures are required to ensure that there is no breach of the requirements of Articles 5(2)-(4).

The President dealt with the general principles from paragraphs 8 to 40 inclusive of his Judgment, the question of whether it is possible to identify a “minimum age” at paragraphs 41-44 inclusive, and process and procedure at paragraphs 46-53 inclusive, the interface with care proceedings at paragraph 54, and continuing review at paragraphs 55/56.

The framework within which the issues arising in these cases fell to be considered was the analysis of Article 5 set out by the Strasbourg Court in Storck v Germany (2005) 43 EHRR 96, paras 74, 89, repeated in Stanev v Bulgaria (2012) 55 EHRR 696, paragraphs 117, 120, and summarised in the Supreme Court by Lady Hale DPSC in Surrey County Council v P and others (Equality and Human Rights Commission and others intervening), Cheshire West and Chester Council v P and another (Same intervening) [2014] UKSC 19, [2014] AC 896 (Cheshire West), paragraph 37:

“… what is the essential character of a deprivation of liberty? … three components can be derived from Storck …, confirmed in Stanev …, 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.”

The President referred, by way of shorthand, to these three components as Storck components (a), (b) and (c); sometimes they are referred to as Storck limbs (1), (2) and (3). To ensure clarity of exposition, he used the phrase “deprivation of liberty” to describe the state of affairs where all three components of Storck are satisfied, that is, where there is a deprivation of liberty within the meaning of Article 5(1) which therefore engages the State’s obligations under Articles 5(2)-(4). In contrast, he used the word “confinement” to describe the state of affairs referred to in Storck component (a).

He took Storck components (a), (b) and (c) in turn, starting with Storck component (c). It is so obvious that where a child is subject to a care order (whether interim or final) there is involvement and “responsibility” by the State satisfying Storck component (c) – both the State in the form of the Court and the State in the form of the local authority named in the care order – that the point requires neither elaboration nor citation of authority.

Turning to Storck component (b), what was important for present purposes were two points:

  1. First, where a child is subject to a care order (whether interim or final) neither the local authority nor a parent can exercise their parental responsibility in such a way as to provide a valid consent for the purposes of Storck component (b);
  2. Secondly, a foster carer does not have parental responsibility enabling the carer to provide a valid consent for the purposes of Storck component (b).

Pausing there, it follows that, in relation to a child who is subject to a care order, the question of whether there is a “deprivation of liberty” within the meaning of Article 5(1) engaging the State’s obligations under Articles 5(2)-(4), will turn on whether there is a “confinement” as referred to in Storck component (a). So the crux of the analysis for present purposes relates to Storck component (a).

Cheshire West formulates the “acid test” of whether Storck component (a) is satisfied as being (see the judgment of Lady Hale, paragraphs 48-49, 54):

“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.”

It will be seen that there are two aspects of the “acid test”: “complete supervision and control” and not being “free to leave”. These are two separate requirements.

In this connection, there are two important points to be noted. The first is that there is a clear distinction between a “deprivation of liberty” within the meaning of Article 5 and a restriction on liberty of movement governed by Article 2 of Protocol No 4. The second point, as the Strasbourg Court said in HL v United Kingdom (2004) 40 EHRR 761, paragraph 92, is that whether the relevant accommodation is “locked” or “lockable” is not determinative of whether there is, as we would now put it, a “confinement” as referred to in Storck component (a). This is an important point of principle.

Typically, a “young” child living with his parents would be living in circumstances amounting to confinement in the Storck sense, but would not be deprived of his liberty so as to engage Article 5.  Nor would a similar child living with foster carers.  The question in relation to the child in care was, at what point in his development, and by reference to what criteria, was it to be determined that the circumstances amounting to confinement engaged Article 5.  The answer depended more on supervision and control than freedom to leave. Lord Kerr’s analysis in Cheshire West was crucial: the restrictions to which the child in care was subject had to be compared with those applicable to a child of the same age, station, familial background and relative maturity, whose freedom was not limited.  Although each case had to be determined on its facts, as a rule of thumb, a 10-year-old under constant supervision was unlikely to be being deprived of his liberty, an 11-year-old might be, but the court would more readily conclude that a 12-year-old was.

Key elements of an Article 5 compliant process – Confinement would be lawful if it was necessary and proportionate and had been authorised by the High Court in the exercise of its inherent jurisdiction.  An application to the Court had to be made where the child’s circumstances arguably constituted a deprivation of liberty. There had to be an oral hearing in the Family Division.  The child had to be a party, had to have a guardian, and should be permitted to express their wishes and feelings if of an age to do so.  The evidence had to address the nature of the regime in which the child was to be placed; the child’s circumstances and prognosis; why the proposed regime was necessary and proportionate; the views of the parents and independent reviewing officer; and the most recent care plan, reviews and reports on the child’s physical and mental health.  An assertion that the child had the capacity to consent to the confinement would usually have to be supported by evidence from the child, a psychologist or a psychiatrist.  Although “bulk” applications were unlawful, a number of separate cases could be heard together or in sequence before one judge if there was significant evidential overlap. The Court did not have to specifically authorise each element of the circumstances constituting the confinement; it was sufficient for the order to authorise the child’s deprivation of liberty at “placement X” as described in some cross-referenced document, and the use of medication and restraint if appropriate.  If, at the outset of care proceedings, there was a real likelihood that a deprivation of liberty authorisation might be required, the proceedings should be issued in the Family Court.

Continuing review is crucial to the continued lawfulness of any confinement. There have to be regular reviews by the local authority and a review by a Judge at least once a year, or sooner if there was a significant change in the child’s condition or if as different placement is proposed. The child has to be a party to the review and has to have a guardian. If there has been no significant change of circumstances, the review could be conducted on the papers.



February 5th, 2018 by James Goudie QC in Capital Finance and Companies

Statutory Guidance (3rd Edition) on Local Government Investments, under Section 15(1)(a) of the Local Government Act 2003, and effective for financial years commencing on or after 1 April 2018, has been published on 2 February 2018.  Also on 2 February 2018, Statutory Guidance (4th Edition) on Minimum Revenue Provision has been issued, under Section 21(1A) of the 2003 Act.  Both were preceded by consultation on proposed changes and are accompanied by a summary of consultation responses and the Government’s responses to those responses.  This document states:-

“Following consideration of the consultation responses the Government, in summary, intends to:

  • make some technical changes to the Investments Guidance and the MRP Guidance reflecting respondents’ feedback;
  • amend proposals related to the Useful Economic Lives of assets;
  • implement the Investments Guidance for 2018-19, but allow flexibility on when the additional disclosure first needs to be presented to full Council or its equivalent; and
  • defer implementation of MRP Guidance to 2019-20. This is in recognition of the fact that it is very late in the 2018-19 budget setting cycle.”