Appeal against a decision involving the deprivation of liberty of a 16 year old boy. The appeal was allowed on one ground.
LA's application for permission to deprive the child Patient of his liberty in circumstances where there was no secure accommodation available.
The Patient, a 13 year old child, had displayed a desperate history and catalogue of very seriously uncontrolled behaviour, damaging both to himself and to others. As a result he had been placed in no less than six different residential settings. Each such setting ultimately broke down, sometimes very rapidly, as the staff there were simply unable to manage his behaviour and keep him safe. The LA would have wished by last June to place the child in an approved secure accommodation placement. Such placements are currently very scarce and they were unable to find one. So it was that they hoped to place him in a unit which is not approved secure accommodation at X. Their plan was, however, that within X he should, if necessary, be subject to considerable restraint, including physical restraint, in order to keep him safe and prevent him from absconding, as he had done on occasions in the past. It is not necessary to apply to the High Court for a secure accommodation order. However, as no approved secure accommodation was available, the LA required the authorisation of a court for the inevitable deprivation of liberty of the child which would be involved.
Mr Justice Holman expressed his concern over the way in which applications of this sort are handled, saying that "the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division." The judge ordered that the child now be joined as a party to these proceedings and Cafcass must forthwith allocate a guardian to act on his behalf. A further hearing was ordered to be fixed in one month.
Read the full text of the judgment on Bailii
Application brought on behalf of the Patient by way of a challenge to a Standard Authorisation authorising the deprivation of his liberty at a care home for six months expiring on 2nd August 2017. The application was dismissed.
Whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights (“the Convention”), it is necessary for a welfare order to be made by the Court of Protection (“the CoP”) pursuant to the Mental Capacity Act 2005 (“the MCA”) in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention (“Article 5(1)”).
This application before District Judge Bellamy concerned the legality of providing covert medication to patients subject to DOLS authorisations and the attributability of the State.
This case considered the State’s positive obligations under Article 5 ECHR and whether such obligations extend to cover individuals who fall under care within the private sector.
Care proceedings brought by a local authority in relation to X, a boy of 10, and also an application to authorise them to deprive X of his liberty by accommodating him in Y Home.
It was acknowledged by all that if X was to remain at Y Home there would need to be a declaration in the High Court authorising the Local Authority to deprive X of his liberty as far as was necessary to keep him there. The Local Authority would be authorised to deprive X of his liberty but do not need to do so if it is not in their view necessary (a permissive order).
Whether the court should grant the Local Authority leave to invoke the inherent jurisdiction. Keehan J has considered this point in AB (A Child: Deprivation of Liberty)  EWHC 3125 (Fam) where he sets out therein why section 25 of the Children Act 1989 is not an appropriate way of dealing with such cases.
This case concerned long-running proceedings relating to a young man aged 26, M, and had been ongoing for two years. His parents E and A, whilst the court found they greatly loved their son, had, in an earlier judgment of Baker J, (Re M  EWCOP 33] found that whilst M had ASD and a learning disability, his parents had fabricated his reaction to an MMR vaccination. They had claimed it had caused autism in M and had given many fabricated accounts as to his health, caused M to be subjected to unnecessary tests and interventions, failed in relation to dental treatment to obtain treatment and E as M’s deputy had controlled all aspects of his life and restricted access to him by number of professionals. The court found that these behaviours amounted to factitious disorder imposed on others and additionally E had a combination of personality disorders – narcissistic, histrionic and emotionally unstable.
The key issues in this judgment focused upon the identity of the deputy, deprivation of liberty, disclosure and publication of information relating to proceedings and some miscellaneous issues.
This case first came before Mr. Justice Charles in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust  UKUT 376 (AAC), in which a restricted patient lacked the capacity to consent to the conditions of his conditional discharge, his care package and any deprivation of his liberty that would arise.
The FTT were not invited to apply the conclusion reached in the KC case, as was requested. Charles J commented this leaves an unsatisfactory position for restricted patients that the Secretary of State would be reserving or simply not advancing and argument on their jurisdiction and may be considering the exercise of his power to direct a conditional discharge on the basis that the KC case was wrongly decided. This clearly causes problems and creates the possibility of time and money being wasted by patients, the tribunal, local authorities and the Court of Protection.
The appeal raises the point whether for the purposes of Article 5 ECtHR a restricted patient who has the capacity to do so can give a valid consent to the terms of a conditional discharge that, when it is implemented, will on an objective assessment create a deprivation of the patient's liberty.
The appeal was argued on the bases that:
This matter first came before Mr. Justice Keehan on 31 March 2015, when he gave Judgment in Trust A v X and A Local Authority  EWHC 992 (Fam). It was decided then that D's parents could consent to his confinement and there was no deprivation of liberty (DOL) of D, who was then 15 years old.
When D turned 16 years old, Birmingham City Council ("the applicant") made an application for the court to determine:
(a) Whether D was being deprived of his liberty in a residential placement; or
(b) Whether D's voluntary accommodation pursuant to s.20 of the Children Act 1989 meant he could not be deprived of his liberty.
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