Judge: Family Division (Keehan J)
Citation:  EWHC 3125 (Fam)
A 14-year-old boy, AB, was residing in a children’s home under an interim care order, having previously been accommodated under s.20 of the Children Act 1989 and made subject to a child protection plan on the basis of neglect. He had moderate to severe learning disability, attention deficit hyperactivity disorder, a statement of special educational needs, attended a special school, and was under the care of the child and adolescent mental health services. He was happy, settled, and wished to remain in the children’s home but lacked capacity to make the decision.
His care regime provided for the following:
According to his social worker:
“AB is under the continuous supervision of staff, who are aware of his whereabouts at all times. AB is residing in a care setting, where he is not free to leave unsupervised. He is also not able to contact his family independently. All behaviour that is perceived to be challenging is managed with verbal redirection. AB is also on an ongoing prescription of sedative medication which alters his behaviour and is a form of chemical restraint.”
Keehan J agreed with the parties that, applying Cheshire West, the circumstances amounted to continuous supervision and control and he was not free to leave. The focus was whether there was valid consent from those with parental responsibility. His Lordship had previously considered this issue in Re D  EWHC 922 (Fam) but in a different context, namely where parents were held to be able to consent to their 15-year-old child being admitted to and kept in a psychiatric hospital:
“26. Do the same considerations apply when a child is accommodated by a local authority pursuant to s.20 of the Children Act 1989? The only possible answer is they may do. It will all depend on the facts of the individual case. At one extreme, an agreed reception into care of a child, that is beneficial and for a short-lived period, where the parent and the local authority are working together co-operatively in the best interests of the child, may be an appropriate exercise of parental responsibility. Thus it would be appropriate for that parent to consent to the child residing in a place (for example, a hospital) for a period and in circumstances which amount to a deprivation of liberty.
27. At the other extreme, there will be cases where children have been removed from their parents’ care pursuant to a s.20 agreement as a prelude to the issue of care proceedings and where the local authority contend the threshold criteria of s.31(2) of the Children Act 1989 are satisfied. In such an event, I find it difficult to conceive of a set of circumstances where it could properly be said that a parent’s consent to what, otherwise, would amount to a deprivation of liberty, would fall within the zone of parental responsibility of that parent. This parent’s past exercise of parental responsibility will, perforce of circumstances, have been seriously called into question and it would not be right or appropriate within the spirit of the conclusion of the Supreme Court in Cheshire West to permit such a parent to so consent.
28. Where a child or young person is in the care of a local authority and is subject to interim or care orders, the reasoning in paragraph 27 applies with even greater force, especially when one considers the effect of an interim care order, which includes the power of the local authority to restrict “the extent to which a parent may meet his parental responsibility for the child” (s.33(3)(b) Children Act 1989).
29. Where a child is in the care of a local authority and subject to an interim care, or a care, order, may the local authority in the exercise of its statutory parental responsibility (see s.33(3)(a) of the Children Act 1989) consent to what would otherwise amount to a deprivation of liberty? The answer, in my judgment, is an emphatic “no”. In taking a child into care and instituting care proceedings, the local authority is acting as an organ of the state. To permit a local authority in such circumstances to consent to the deprivation of liberty of a child would (1) breach Article 5 of the Convention, which provides “no one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”, (2) would not afford the “proper safeguards which will secure the legal justifications for the constraints under which they are made out”, and (3) would not meet the need for a periodic independent check on whether the arrangements made for them are in their best interests (per Lady Hale in Cheshire West at paragraphs 56 and 57).”
Importantly, Keehan J rejected the suggestion that an interim/care order could explicitly or implicitly authorise a deprivation of liberty:
“36. In my judgment, this is not a viable option. When the court makes a care order it hands over control of the child to the local authority such an authorisation would not, and could not, afford the necessary degree of safeguards and periodic, independent checks required by the provisions of Article 5 of the Convention. For these purposes, the local authority child care review, chaired by an independent reviewing officer, would not, in my judgment, afford the required safeguards and checks, sufficiently independent of the state.”
This left two options. Keehan J held that secure accommodation orders under s.25 of the Children Act 1989 did not provide an appropriate mechanism. They had a punitive quality, were designed for those looked after children who, by reason of their actions, were likely to abscond and suffer significant harm or injure themselves or others (para 31). In any event, AB did not satisfy the criteria and the children’s home for secure accommodation.
The only remaining route to authorisation therefore was the inherent jurisdiction. The criteria for permission, as set out in s.100(4) of the Children Act 1989, were held to be satisfied because the result could not be otherwise achieved and, if the jurisdiction was not exercised, AB was likely to suffer significant harm. This was because his placement would be unlawful, in breach of Article 5, so he would have to move to another establishment against his wishes where he would not be under constant supervision and control. This would not be in his welfare best interests and significant harm would likely result (para 34). Accordingly the deprivation was authorised for three months.
Paragraph 38 of the judgment provides some general observations in respect of children in need and looked after children which we set out in full:
“(1) Local authorities are under a duty to consider whether any children in need, or looked-after children, are, especially those in foster care or in a residential placement, subject to restrictions amounting to a deprivation of liberty.
(2) The Cheshire West criteria must be rigorously applied to the individual circumstances of each case.
(3) The comparison to be made is not with another child of the same age placed in foster care or in a residential home, but simply with another child of the same age.
(4) A deprivation of liberty will be lawful if warranted under statute; for example, under s.25 of the Children Act 1989 or the Mental Health Act 1983 or under the remand provisions of LASPO 2012 or if a child has received a custodial sentence under the PCCSA 2000.
(5) Where a child is not looked after, then an apparent deprivation of liberty may not in fact be a deprivation at all if it falls within the zone of parental responsibility exercised by his parents (see Re D). The exercise of parental responsibility may amount to a valid consent, with the consequence that the second limb of Cheshire West is not met. In those circumstances, the court will not need to make any declaration as to the lawfulness of the child’s deprivation of liberty.
(6) Where a child is a looked-after child, different considerations may apply, regardless of whether the parents consent to the deprivation of liberty.
(7) Where a child is the subject of an interim care order or a care order, it is extremely unlikely that a parent could consent to what would otherwise amount to a deprivation of liberty. In those circumstances, a local authority cannot consent to a deprivation of liberty.
(8) The local authority must first consider whether s.25 of the Children Act is applicable or appropriate in the circumstances of the individual case. This will require an analysis of (1) whether any of the regulations disapply s.25, (2) whether the intended placement is accommodation provided for the purposes of restricting liberty and, thus, secure accommodation within s.25 and (3) whether the test set out in s.25.1(a) or (b) is met.
(9) If it is not, then the s.100(4) leave hurdle is likely to be crossed on the basis that any unlawful deprivation of liberty is likely to constitute significant harm.
(10) Irrespective of the means by which the court authorises the deprivation of a child’s liberty, whether under s.25 or the inherent jurisdiction, the local authority should cease to impose such deprivation as soon as (1) the s.25 criteria are not met, or (2) the reasons justifying the deprivation of liberty no longer subsist. Authorisation is permissive and not prescriptive.” (emphasis added)
The fact that MIG and MEG were held by the Supreme Court majority to be deprived of their liberty meant significant implications for child and transition services which we are now being felt. After all, MEG was 17 years old and subject to a care order. Her mother and the local authority, sharing parental responsibility, consented to her placement. But she was still held to be deprived. It was therefore clear that parental responsibility could not be relied upon as valid consent to a care regime for her that would otherwise engage Article 5. The issues ever since have related to: (a) When are children and young people deprived of liberty? (b) Is there any age below which parental consent would avoid Article 5? And (c) how can a deprivation be authorised?
(a) The nuanced acid test
We suggest that the Supreme Court has clearly set out the different considerations that apply in respect of those under 18 and refer readers to chapter 9, paras 9.5 to 9.10, of the Law Society guidance. The difficulty is in determining what amounts to a universal degree of age-appropriate constraint in a multicultural society, discussed at paras 9.11 to 9.15. Rather than comparing AB “with another child of the same age”, we would respectfully suggest that, to entirely accord with para 79 of the Cheshire West judgment, the comparator would be “another child of the same age and relative maturity who is free from disability”.
(b) Parental consent
In Re D it was held that the parents of a 15-year-old boy could consent to his psychiatric placement so as not to bring it within Article 5. The present case suggests that the same “may” be true in relation to those “voluntarily” accommodated under s.20 of the Children Act 1989, depending upon whether it is “an appropriate exercise of parental responsibility”. We anticipate that different considerations may apply to those aged 16 and over. However, it is now clear that, for anyone under the age of 18, the same is emphatically not true for those subject to interim/care orders.
The stark reality therefore for those working in child and transition services is that if a child or young person is under an interim/care order and satisfies the nuanced acid test, that deprivation of liberty will have to be separately authorised: the care order will not cover it.
(c) Authorisation to deprive
As the judge indicated, secure accommodation orders are likely to be inappropriate for the kind of placements under discussion where welfare best interests are the paramount consideration. The inherent jurisdiction will instead have to be used and this judgment helpfully suggests that getting permission to invoke it is unlikely to be difficult where Article 5 is engaged. The Supreme Court has created the child-equivalent of the ‘Bournewood’ gap – what we have previously termed, ‘Baby Bournewood’ – and in the absence of a legislative procedure to authorise such deprivations of liberty, it falls once again upon the inherent jurisdiction to plug that gap.
According to the latest figures, as at 31 March 2015, there were 69,540 looked after children in England, of which 42,030 were under an interim/care order. A further 19,850 were under a s.20 agreement.
The potential number of those lacking the relevant capacity who satisfy the nuanced acid test is likely to be sizeable. To implement Cheshire West by invoking the inherent jurisdiction in such cases may well prove to be a challenge. Moreover, the judges of the High Court will need to provide the necessary procedural safeguards to satisfy Article 5, including reviews. In the present case, a three-month authorisation period was granted. But it seems likely that similar issues facing judicial adult authorisations, discussed for example in Re X and Re NRA, may well head towards judicial child authorisations.