When can or should a child be deprived of liberty?

The question of whether a child should ever be deprived of his liberty for his own safety must always remain a deeply fraught one. It is highly instructive to follow the workings of the courts here, and to see how Human Rights legislation works with UK law to promote the best possible outcome for a vulnerable child.

Sitting in the Family Court at Chelmsford last Friday, HHJ Lynn Roberts ruled that a ten-year-old boy diagnosed with severe autism and learning disabilities should remain in secure accommodation.

Thurrock Borough Council brought care proceedings in relation to the child, Daniel X, in November 2015 after he had been living in a home for a substantial period, and sought permission from the court to ’deprive Daniel of his liberty’ for his own protection.

Daniel lived with his parents and his sister Sarah until summer 2014 when, aged eight and three respectively, the children were left at home alone ’resulting in Daniel wandering the streets with no shoes or trousers on’ and Daniel was moved to a home. The local authority had been indicating concerns that Daniel was not receiving sufficient care in the home since 2010, as there were other behavioural incidents.

The local authority considered the parents capable of looking after Sarah, but due to the severity of Daniel’s conditions, they initiated care proceedings. The judge, HHJ Lynn Roberts read several experts’ reports and social worker’s assessments of Daniel’s condition and current circumstances.

The local authority submitted a care plan for Daniel, which intended that he still has regular and frequent contact with his family. The case was raised to the High Court because the local authority was concerned that their devised care plan for Daniel once he was in a home ‘involves restricting Daniel’s liberty to leave, as he would be placed there by the state, and has not got the option to depart’.

Daniel’s parents have accepted the conclusions of the expert reports, and are pleased with Daniel’s current care in the home. It was stressed that Daniel would fare better in a home rather than in a family environment where ’whilst caring well for Sarah are not able to meet Daniel’s needs’.

The judge considered that the requirements of s.31 Children Act 1989 had been met regarding the suitability of a care order, and said that, due to Daniel’s needs, "he needs to be cared for within a specialised unit with expert staff looking after him, protecting him and enabling him to progress and reach his potential".

Deprivation of liberty

Because of Daniel’s medical issues, he requires constant supervision so as not to be a danger to himself and others. The home that the local authority proposed for Daniel has physical restrictions to prevent him from leaving the home, and restricts his movement within the building. HHJ Roberts, after reviewing the evidence, was happy that these provisions were necessary for Daniel’s wellbeing.

The local authority requires permission to restrict Daniel’s liberty in this way at their discretion. The provisions of s.25 Children Act 1989 ’Use of accommodation for restricting liberty’ were considered to be more relevant to children’s homes that are specifically designed to restrict a child’s movement, which the home in this instance is not. HHJ Roberts considered that the court could use its inherent jurisdiction to grant permission to the local authority to restrict Daniel’s liberty.

The provisions in s.100 Children Act 1989 ’Restrictions on use of wardship jurisdiction’ mean that the result the local authority is trying to achieve requires a level of restriction that can only be granted by the courts. HHJ Roberts concluded that s.100 requirements were satisfied, because in this instance the local authority are trying to protect Daniel and prevent him from suffering significant harm.

The Local Authority emphasised that Daniel’s conditions are encompassed by Article 5(1)(e) of the Human Rights Act, ’the lawful detention of persons… of unsound mind’. As considered in HL v UK (2000) and the case of Winterwerp Netherlands (1979-80), "the persistence of the condition which has lead to the person’s detention and the lawfulness generally of the detention should be reviewed at reasonable intervals". In the UK these principles were considered in Re PS (Incapacitated or Vulnerable Adult) and Re BJ (Incapacitated Adult) . Both emphasise the need for an order to have adequate independent reviews at reasonable intervals to ascertain the continued necessity and legality of the order.

Conclusions

The Judge chose not to make a long order (which was originally sought by Thurrock Borough Council) with scheduled reviews, so that the local authority would be required to return to court to renew and review the order at regular intervals:

I shall make a declaration that it is lawful for Thurrock Borough Council to deprive Daniel of his liberty by accommodating him at Y Home for one year from 12 May 2016 and that this deprivation of liberty is a necessary and proportionate measure for the safeguarding of Daniel’s welfare.

HHJ Roberts told the local authority that, 35 days before the order’s expiry, they could apply to the court for the order to be reviewed and renewed, so long as they could provide sufficient supporting evidence such as updated medical assessments, school records, and a social worker’s report. In this way, the court would be able to fully assess Daniel’s living situation and determine the level of necessity for renewing the order:

I consider this a very sensible way forward, proportionate and not onerous to the local authority, but providing Daniel with the safeguards which he, as a very vulnerable child, requires.