Judge: Holman J
Citation:  EWCOP 46
This case is the sequel to the Liverpool v SG case in which Holman J held that there the Court of Protection has the power to make an order which authorises that a person who is not a child (ie who has attained the age of 18) may be deprived of his liberty in premises which are a children’s home as defined in section 1(2) of the Care Standards Act 2000 and are subject to the Children’s Homes Regulations 2001 (as amended). In that case, Holman J had indicated that he had doubts about the accuracy of paragraph 4 of the Guidance issued jointly by the President and OFSTED on 12 February 2014 entitled “Deprivation of Liberty – Guidance for Providers of Children’s Homes and Residential Special Schools.” He did not, though, have to express a definitive view.
In the Liverpool case, further, Holman J did not have cause to consider the National Minimum Standards National Minimum Standards for Children’s Homes issued by the Department of Education in April 2011. They featured heavily here (as did submissions from the Secretary of State, who initially argued that the Liverpool case was wrongly decided, before a last-minute reversal of position). Having had detailed reference to the NMS, Holman J has held that paragraphs 4, 6 and 13 of the Guidance are incorrect:
“23. In agreement with the submissions of each of the Secretary of State for Education, the local authority in this case and the Official Solicitor, I very respectfully do not agree with the reasoning in paragraph 6 of the guidance. There is nothing in either the legislation, or the regulations, or the NMS which has the effect that a children’s home, which is not an approved secure children’s home, is ‘unable’ to deprive a person of his liberty. To the contrary, regulation 17A [of the Children’s Homes Regulations 2001] contemplates that, when there is no alternative method of preventing injury to any person (including the person who is restrained) or serious damage to the property of any person, restraint may be used, provided it is proportionate and no more force than is necessary is used.
24. The NMS 3.19 and 12.7 themselves state that ‘No children’s home/school … restricts the liberty of any child as a matter of routine…’ Whilst never a matter of routine, those very standards clearly contemplate that a home or school may have to restrict liberty as a matter of non-routine. Such restraint may involve a deprivation of liberty as now understood and, in my view, the unqualified proposition in paragraph 4 of the guidance that there is no purpose to be served in seeking an order of the Court of Protection goes too far. So, accordingly, does the proposition in paragraph 6 and the summary in paragraph 13 of the guidance. In my view, there can indeed be circumstances in which the Court of Protection may authorise a children’s home or residential special school to impose restraint which amounts to a deprivation of liberty, and the guidance is mistaken in suggesting that the effect of the NMS is necessarily to prevent the court from doing so.”
Holman J expressly declined to decide whether, in the instant case, the COP should make an order having the effect of depriving a 20 year old resident in a registered children’s home of his liberty, remitting the question back to the District Judge with conduct of the case to consider. He did, though, invite the SoS to consider contacting Sir James Munby P (“renowned for his approachability”) to raise her concerns about any aspects of the Guidance.
This is a welcome decision because it clears up a substantial area of concern and confusion caused – no doubt inadvertently – by the Guidance. We hope that steps will be taken in short order to revise it. We also note that the draft Children’s Homes (England) Regulations 2015, regulation 22 will confirm that a court order (other than a secure accommodation order) can authorise a child’s deprivation of liberty in that care setting.