February 5th, 2018 by James Goudie KC

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.

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