Deprivation of Liberty

February 11th, 2020

In Hertfordshire Council v NK (2020) EWHC 139 (Fam) the question before MacDonald J was whether the Court should grant a deprivation of liberty order (“DOL Order”) under the inherent jurisdiction of the High Court in respect of AK, aged 16, and with a diagnosis of ADHD and a conduct disorder, leading to a history of self-harm, suicidal ideation and low mood. The Council’s application for a DOL Order was opposed by AK’s Children’s Guardian, AK’s mother, NK, did not appear, and was not represented.

The Judge said:-

“22. The law on the making of a DOL under the inherent jurisdiction of the High Court is well settled. …

23. It is a fundamental principle of a democratic society that the State must adhere to the rule of law when interfering with a person’s right to liberty and security of person …”

The Judge then referred to Article 5(1) of the European Convention on Human Rights (Right to liberty and security), and continued:-

“24. Whilst Art 5(1)(d) of the ECHR provides a specific example of the detention of children, namely for the purposes of educational supervision, that example is not meant to denote that educational supervision is the only purpose for which a child may be detained …

25. It is well established that the rights enshrined in the ECHR are to be read and given effect in domestic law having regard to the provisions of the UN Convention on the Rights of the Child …”

The judge then referred to Article 37 of the UN Convention on the rights of the child, and observed that, within that context, it is of note that deprivation of liberty for the purposes of securing a child’s welfare has been “deprecated” by the UN Committee on the Rights of the Child. He continued:-

“26. In Storck v Germany (2006) 43 EHRR 6 the European Court of Human Rights established three broad elements comprising a deprivation of liberty for the purposes of Art 5(1) of the ECHR, namely (a) an objective element of confinement to a certain limited place for a not negligible period of time, (b) a subjective element of absence of consent to that confinement and (c) the confinement imputable to the State. Only where all three components are present is there a deprivation of liberty which engages Art 5 of the ECHR. Within this context, in Cheshire West and Chester v P [2014] AC 896 the Supreme Court articulated an ‘acid test’ of whether a person who lacks capacity is deprived of their liberty, namely (a) the person is unable to consent to the deprivation of their liberty, (b) the person is subject to continuous supervision and control and (c) the person is not free to leave.”

MacDonald J then, with respect to the application of the second and third limbs of the test to children and young people, referred to the review of the “extensive case law” by Cobb J in Re D (2018) EWHC (Fam) 47; and went on to refer to Guzzardi v Italy (1980) 3 EHRR 333, where the ECtHR observed that to determine whether someone has been “deprived of his liberty” within the meaning of Article 5:-

“The starting point must be his or her concrete situation and account must be taken of a whole range of criteria such as the type, duration, effect and manner of implementation of the measure in question.”

At paragraph 28, MacDonald J repeated a non-exhaustive list of relevant factors, as follows:-

“i) The extent to which the child is actively prevented from leaving the placement and the extent to which efforts are made to return the child if they leave;

ii) The extent to which forms of restraint are utilised in respect of the child within the placement and their nature, intensity, frequency and duration;

iii) The nature and level of supervision that is in place in respect of the child within the placement;

iv) The nature and level of monitoring that is in place in respect of the child within the placement;

v) The extent to which rules and sanctions within the placement differ from other age appropriate settings for the child;

vi) The extent to which the child’s access to mobile telephones and the Internet is restricted or otherwise controlled;

vii) The degree of access to the local community and neighbourhood surrounding the placement and the extent to which such access is supervised;

viii) The extent to which other periods outside the placement are regulated, for example transport to and from school.”

The Judge continued (emphasis added):-

“29. With respect to the application of the ‘acid test’ to children and young people … the courts have utilised comparators against which to measure the elements of that test in respect of the subject child. …

30. Within this context, in Cheshire West and Chester v P Lord Kerr observed that “All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances”. Childhood is not a single, fixed and universal experience between birth and majority but rather one in which, at different stages, in their lives, children require differing degrees of protection, provision, prevention and participation. Within this context, with respect to the subject child, each case must be decided on its own facts.”

The Judge was not satisfied that AK’s current circumstances constituted a deprivation of liberty for Article 5 purposes. It was very difficult to see how the current regime applied to AK could be said to constitute him being “subject to continuous supervision and control”. AK was not at present actively prevented from leaving his placement. There was no evidence that any forms of restraint were utilised in respect of AK. The nature and level of supervision that was in place in respect of AK was two to one supervision, but that supervision is interspersed on a regular basis with extended unsupervised periods outside the unit for the purposes of contact. The nature and level of monitoring that is in place in respect of AK within the placement comprises 15 minute checks when he was in his room, but that had to be viewed in context. AK’s access to mobile telephones and the Internet was not restricted or otherwise controlled in any way; and AK has a considerable degree of access to the local community and neighbourhood surrounding the placement.

The Judge said (emphasis added):-

“33. The question of whether AK is restricted to an extent that constitutes a deprivation of his liberty by reference to the applicable criteria set out above is as a matter of fact that falls to be determined by comparing the extent of the AK’s actual freedom with someone of the child’s age and station whose freedom is not limited. Having regard to the current situation for AK in his placement, I am not satisfied that the level of supervision and control to which AK is subject is sufficiently different from a child of AK’s age and station to constitute a deprivation of liberty for the purposes of Art 5 of the ECHR.

34. Further, I am not satisfied, in the circumstances of this case, that this conclusion is altered by the fact that the local authority has in place a more restrictive care plan that would be implemented if AK’s behaviour deteriorated, assuming for present purposes that the implementation of that care plan as drafted would constitute a deprivation of AK’s liberty for the purposes of Art 5 of the ECHR.

35. First, whilst I do not believe that there can be any objection in principle to the making, in an appropriate case, of an anticipatory declaration or order under the inherent jurisdiction of the High Court …the question here is whether the court should exercise such a jurisdiction where the application is for a DOL order in respect of a child made under the inherent jurisdiction of the High Court. Within this context, it is plain that such orders will only be made in exceptional circumstances. …

36. Second, and in any event, I am satisfied that in considering whether given restrictions constitute a deprivation of a child’s liberty, it is the current situation of the child that ordinarily falls for consideration by the court. … In this context, the authorities suggest that in determining whether to make a DOL order, ordinarily the task of the court is to consider whether the current circumstances of the child amount to a deprivation of liberty … In this case, AK is not actuality deprived of his liberty at the present time for the reasons I have described. That is not his concrete situation as matters stand.

37. Third, I accept that by the terms of the care plan that the local authority contends is required to meet AK’s identified needs this might become his concrete situation if the local authority chose to implement its stated care plan upon a future deterioration in AK’s behaviour. However, and again assuming that the care plan if implemented would amount to a deprivation of liberty such as to justify a DOL order, this gives rise to a further and significant concern with the granting of a contingent or anticipatory DOL order.

38. The local authority’s position amounts to the court being asked to confer upon an applicant local authority a continuing and contingent authority to deprive a child of his or her liberty if it becomes necessary to do so at some unidentified future point upon the local authority’s assessment that this course of action is in the child’s best interests. In Re D at [41] Baroness Hale made clear that the protection afforded by Art 5 of the ECHR is precisely so that there can be an independent assessment whether the arrangements that constitute a deprivation of liberty can be said to be in a person’s best interests. It is implicit in the authorities that I have mentioned above that that assessment by an independent authority falls to be made at the point at which it is said the person is deprived of their liberty. Within this context, the making of an anticipatory order in favour of the local authority that will govern a situation that may or may not pertain in the future deprives the court of the ability to conduct an independent assessment of the circumstances of AK at the point in time his liberty is said to be deprived, in a situation that is likely to be highly fluid and that could change on a day by day basis.

39. …, the court’s evaluation prior to granting such an order must condescend to the detailed circumstances which are said to justify the order at the point at which it is said that order is justified….

40. Fourth, in addition to these difficulties, it is possible to identify wider disadvantages to the making of contingent or anticipatory DOL orders authorising the deprivation of liberty of vulnerable children on the happening of some future event. The current use of DOL orders to restrict the liberty of children in residential placements is a remedy that sits outside the statutory regime established by Parliament, after due consideration and debate, for the secure accommodation of children pursuant to s 25 of the Children Act 1989.

41. In these circumstances, in the absence of a clear legislative intent and where the liberty of the subject is at stake and any restriction on that liberty will constitute a serious interference with the fundamental rights of the individual, the court must be extremely chary of proceeding in a manner that would have the effect of conferring on a local authority a wide discretion to regulate the deprivation of a child’s liberty (as I am satisfied would be one of the clear effects of granting a contingent or anticipatory order to be implemented at some future date upon the local authority’s own best interests assessment at that time) without the strict oversight that comes with granting a DOL order only after the court has evaluated the child’s current situation by reference to the demands of the imperatives contained in Art 5 of the ECHR. … this would amount to a significant, and undesirable, extension of the use of the inherent jurisdiction in cases of this nature.

42. All this is not, of course, to say that there will never be a case in which a court will grant a DOL order in respect of a child on the basis of a regime (whether set out in a care plan or otherwise) that has not yet been implemented but will be. However, I anticipate that before making such an order the court will need cogent evidence that the regime proposed will be the regime that will be applied to the child if the DOL order is granted, rather than the far more speculative situation that pertains in this case. …

43. Having regard to these matters, I am entirely satisfied that it would not be appropriate in this case to grant an anticipatory or contingent DOL order on the basis that the local authority’s care plan may constitute a deprivation of liberty if at some unspecified point in the future AK’s behaviour deteriorated to the point that, in the assessment of the local authority, the provisions of the care plan should, contrary to the current situation, be implemented.

44. For the reasons I have already given, I am also not satisfied that the current restrictions applied to AK constitute a deprivation of liberty for the purposes of Art 5. …”

MacDonald J concluded:-

“45. In the circumstances, I dismiss the application of the local authority for a DOL order in respect of AK and make no order as to costs.

46. It is important that the local authority understands what the decision I have reached does not do. The decision of the court does not allow the local authority now to implement its stated care plan in full without a DOL order. Similarly, in circumstances where the local authority has contended before the court that the full implementation of the care plan at some future date would constitute a deprivation of AK’s liberty for the purposes of Art 5, my decision does not absolve the local authority of the need to apply to the court for a DOL order if it decides at some future point to implement its stated care plan in full. In such circumstances, if the local authority determines at that future date that AK’s welfare requires the care plan to be implemented in full, the local authority will need to at that point make the appropriate application and the court will make its determination. The decision of the court simply reflects, for the reasons I have given above, the consequence of none of these contingent events having yet come to pass.”

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