AB (A Child : deprivation of liberty) [2015] EWHC 3125 (Fam)

​This is an application made by the Local Authority (‘LA’) for the court to determine the circumstances where a child (‘P’) aged 14 years who resides in a children’s home under an interim care order (‘ICO’), who, as the parties agree, is deprived of his liberty, can be deprived lawfully by the consent of the LA or whether the court will sanction the deprivation of liberty, and if so under what jurisdiction/power.

The Facts
P’s mother left the family home in 2005 and has limited and inconsistent involvement with P and his 13-year-old sister. P’s father was the children’s primary carer. After a physical altercation where P’s father hit him with a broom in November 2013, and received a caution, P and his sister were voluntarily moved, P to a care home and his sister to the paternal aunt.

P moved to foster carers but due to his sexualised behaviour he moved back to the children’s home. P was moved to another children’s home on 10th December 2013 where he remains.

Work was undertaken with the father and P’s sister returned to his care on 23rd February 2014. After successful contact there was a plan to move P back to live with his father. The father was arrested on 1st April 2014 on suspicion of downloading indecent images of children. One of the father’s bail conditions was that he was not to have unsupervised contact with anyone under 18 years.

On 15th May 2015 the LA made applications for care orders.

P has a moderate severe learning disability and attention deficit hyperactivity disorder. It was agreed by all parties that P’s living conditions deprive him of his liberty.

The Law
The court considered the judgment of the Supreme Court in P v Cheshire West and Chester Council and P and Q v Surrey County Council [2014] UKSC 19 (‘Cheshire West’) and JE v DE [2007] 2 FLR 1150 and the meaning of deprivation of liberty.

The court considered its previous decision of Re D [2015] EWHC 922 (Fam’) where it held that the ‘acid test’ in Cheshire West of deprivation of liberty applies to children as it does to adults that lack capacity, although the essential rationale did not apply to the circumstances in Re D.

The court considered Article 5 of the Convention.  

It also considered sections 25 (secure accommodation) and 100(4) (inherent jurisdiction) of the Children Act 1989 (‘CA’).

Decision
The court agreed that P was being deprived of his liberty and he was not merely restricted as ‘he is the subject of continuous supervision and control to a degree which amounts to a deprivation of his liberty.’ (Paragraph 24).

As P was subject to an interim care order where the LA exercises its statutory parental responsibility then the LA is acting as ‘an organ of the state’ (paragraph 29) and therefore to permit them to consent to P’s deprivation of liberty would breach Article 5 and P’s continued placement at the children’s home would be unlawful.

It held that section 25 of the CA was not appropriate and requirements were not fulfilled. It rejected the LA’s proposal that the court could grant the care order on the basis that the plan proposed accommodation that amounted to a deprivation of liberty.

The court held that there were no other means of achieving the making of the order the LA wishes and therefore it granted the LA permission to invoke the inherent jurisdiction and authorised P’s deprivation of liberty for a period of 3 months.
 
Discussion
This judgment is of use to local authorities and lawyers as the court makes observations of what may be done in several circumstances. It is therefore important for social workers involved in children care to understand the tests for deprivation of liberty as applied and known by social workers involved in adult care.

The court reiterated that the issue of whether a child or young person was being deprived of their liberty is fact specific and therefore each case will need to be looked at individually.  

The court did however set out its observations of when a child in need or a looked after child may be being deprived of their liberty (paragraph 38).  They are as follows:

1. Local authorities have a duty to consider whether a placement amounts to a deprivation of liberty;
   
2. The Cheshire West criteria must be rigorously applied to each individual case;
3. The comparison must be made to another child of the same age, not of a child of the same age placed in foster care or in a home;
4. Deprivations of liberty can be lawful under section 25 of the CA, or the Mental Health Act 1983, or under remand provisions of LASPO 2012 or child having received a custodial sentence under PCCSA 2000;
5. If the child is not a looked after child then a deprivation of liberty may not be a deprivation if it falls within the zone of parental responsibility exercised by their parents (Re D);
6. Where a child is looked after different considerations apply regardless if the parent consents to the deprivation of liberty;
7. Where a child is under an interim care order or care order it is extremely unlikely that a parent could consent.  The LA cannot consent to a deprivation of liberty;
8. A LA must consider whether or not section 25 of the CA is appropriate in the particular case;
9. If section 25 is not appropriate then the section 100(4) hurdle is likely to be crossed on the basis that unlawful deprivation is likely to constitute significant harm;
10. Whether or not the court authorises the child’s deprivation of liberty under section 25 or the inherent jurisdiction, the LA should cease to impose the deprivation as soon as the section 25 criteria are not met, or the reasons justifying the deprivation no longer subsist.  
    

Authorisation is permissive and not prescriptive.’

Read the full text of the judgment on Bailii