​KL (A Minor : deprivation of liberty) [2022] EWCOP 24

Judgment giving reasons for why the judge removed an application for the deprivation of liberty of a 17 year old from the streamlined procedure. Although the matter was eventually settled by consent, the judgment has been published to provide guidance on when the streamlined procedure may be appropriate.

KL is a 17 year old with no family contact and diagnoses of autistic spectrum disorder with severe learning difficulties. He is non-verbal. It was agreed that he lacks capacity. Bolton Council made a DoLs application under the streamlined procedure (required as KL needed to receive medical treatment) but HHJ Hilder removed it from that procedure. The OS was subsequently appointed and the application dropped as ‘otiose’. However the Council had been criticised for not using the streamlined procedure and sought clarification of the approach it should take so the judge agreed to set out an explanation of the approach taken by the Court, to be published for wider consideration.

After reviewing the relevant law and procedure, where she touches on, among other things, human rights, inherent jurisdiction, the impact of the pandemic and transfer of proceedings, HHJ Hilder concludes at [86] that:

“In my judgment, KL’s age at the time of the application, his being subject to a Care Order at the time of the application, his absence of family contact and the imminence of transition to adult services were all reasons which clearly led to the conclusion that he should be independently represented, by joinder as a party and appointment of a Litigation Friend for him.”

She goes on, albeit cautiously, to set some guidance for future cases [87]: 

"a) the Court is unlikely to consider that the streamlined procedure is appropriate for authorisation of deprivation of liberty in the living arrangements of 16/17 year olds;

b) the Court is unlikely to be critical of an applicant for bringing an application for authorisation of deprivation of liberty in the living arrangements of a 16/17 year old either by COP1 application to the appropriate hub court, or by streamlined application to the central registry at First Avenue House. It follows from (a) that the procedure adopted post-issue is likely to be substantially the same. If/when an in-person attended hearing is required, consideration will be given to transfer to a local hearing centre."

Read the judgment in full on Bailii