Re D (deprivation of liberty declaration) [2016] EWFC B31

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) [2015] 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. 

Background 
X is a child who presents with an autistic disorder at the severe end of the spectrum and who, according to Dr Martinez, also had a severe learning disability. In the summer of 2014 he became accommodated due to neglect issues arising at his home. Since then he has lived and thrived in a unit known as Y Home and has attended the Z School. In November 2015 care proceedings were initiated. The Local Authority care plan was for X to remain living in Y Home, which technically involved restricting X’s liberty to leave as he would be placed there by the state and X has not got the option to depart. The position of the Local Authority was that X should remain in Y Home with regular and frequent contact with his family. His family did not actively oppose the plans and the Guardian supported it together with the plans for contact between X and the family. 

In relation to Y home, in order to keep X  safe,  it was said that he needs to be constantly supervised and Y Home has physical restrictions to prevent him leaving the premises and indeed, from moving freely around in the premises.

Decision
The court was satisfied that the restrictions and the placement were necessary to promote X’s welfare and to protect him from harm. It is therefore necessary to look at the legal position. The first issue is whether the court should grant the Local Authority leave to invoke the inherent jurisdiction. The court approved Keehan J’s approach in AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam): he sets out therein why section 25 of the Children Act 1989 is not an appropriate way of dealing with such cases and the court agreed.

Counsel for the mother submitted that the alternative way of dealing with this situation, namely to use the inherent jurisdiction, should not be used as a way of avoiding the regulations attached to section 25 which are there to protect children who are kept in secure accommodation. The court did not see this as avoiding the regulations as they are not relevant; they are relevant to institutions which are set up for the purpose of depriving liberty which Y Home is not.

The court agreed that X’s detention is justified on the basis that he is of unsound mind which falls within Article 5 1(e). The article was considered in HL v UK (2000) 40 EHRR 32 at [98] and it is clear from that judgment and the earlier case of Winterwerp Netherlands (1979-80) 2 EHRR 387 that the persistence of the condition which has led to the person’s detention and the lawfulness generally of the detention  should be reviewed at reasonable intervals. The President, first as a High Court Judge and then as a Member of the Court of Appeal,  has dealt with these principles in Re PS (Incapacitated or Vulnerable Adult) [2007] 2FLR 1083 and then in Re BJ (Incapacitated Adult) [2010] 1 FLR 1373. In the first he says:

“Any order authorising detention must contain provision for an adequate review at reasonable intervals, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement”.

and in the case of Re BJ he said: 

“Regular reviews by the court are not merely desirable, not merely a matter of good practice; they go,  as both the Strasbourg jurisprudence and the domestic case-law make clear, to the very legality of what is being done.”

In Re C (Detention: Medical Treatment) [1997] 2 FLR 180 Wall J set out seven considerations which arose from that case to be borne in mind by the court when deciding whether and how it should make an order in such circumstances (although that case concerned detention for the purposes of medical treatment) one of which is that the order should specify the maximum period of the detention being authorised, and if thought appropriate, a review date by the court, LAC review process and by the involvement of the IRO.

This was considered by Keehan J in Re AB and not considered to be an appropriate safeguard. Baroness Hale in Cheshire West was referred to by the court who stated in paragraph 57 that people so detained “need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the deprivation of liberty safeguards….”

An order was made for 12 months. It was agreed that 35 days before the expiry of this order that if the local authority sought to renew the order, it will lodge an application to that effect and include medical evidence to confirm that X still requires that type of accommodation. The evidence lodged will include evidence from the social worker about X’s up to date circumstances, possibly a school report, and a report from the IRO that Y Home is still suitable for X. No Guardian was to be appointed on the issue of the application. The court stated it could make the declaration sought on paper or may list the application for a hearing.

The court granted leave to the Local Authority pursuant to section 100 of the Children Act 1989 as otherwise the Local Authority would not be able to achieve the result which all concerned with X’s welfare consider necessary for his welfare and protection and to prevent him suffering significant harm.

Discussion
In relation to whether the local authority should be granted leave to invoke the inherent jurisdiction,  in paragraph 32 in AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam) Keehan J sets out why section 25 of the Children Act is an inappropriate mechanism not only because of its punitive quality but also because the children’s home in that case, as in this case, is not registered under the relevant regulation (Regulation 3 of the Children’s Secure Accommodation Regulations 1991) which means that an order made under section 25 to allow the child to be accommodated in secure accommodation would mean that the child would have to move to an approved establishment. The court in this case agreed with that approach and permission was granted to the local authority.

It was thought unnecessary for a Guardian to be appointed on the issuing of the application and the court stated it could make the declaration sought on paper or may list the application for a hearing. This would indicate that practical steps are being adopted by the courts in respect of renewal applications for authorisation of deprivations of liberty.

Read the full text of the judgment on Bailii