Judge: Keehan J
Citation:  EWHC 3473 (Fam)
This case concerned C, a 15 year old man who had been made the subject of a care order in favour of the local authority. The local authority brought this application to obtain the court’s authorisation of what it contended was a deprivation of C’s liberty in a residential unit.
Under the arrangements, staff knew the whereabouts of C at all times; he was never left alone in the unit; he was never left alone with other residents; he was subject to 1:1 staffing including during breaks at school; he was subject to constant observations by staff and has no free time when he is not observed; the external doors of the unit were locked at night; the bedroom doors were alarmed at night to ensure privacy and to ensure that the whereabouts of all residents were known; the internal doors were locked if C’s behaviour necessitated it; C could not leave the unit unsupervised and could not leave unaccompanied without permission; he was monitored at all activities outside of the unit and was accompanied on all recreational and social events; he was not permitted any internet access and the use of his mobile telephone was restricted to four telephone numbers; and C could not travel alone on public transport. The court concluded that C was deprived of his liberty as he was confined, supervised and controlled 24 hours a day.
A key question was whether C could, in law, consent to the deprivation of his liberty. Keehan J accepted the opinion of C’s guardian that C was of sufficient understanding and intelligence to enable him to understand fully what was involved in him living in the unit and the restrictions which were imposed on him. The judge was satisfied on the evidence that C not only understood those matters but he understood why they were necessary and why and how they benefited him. Following the decision of Gillick v West Norfolk and Wisbech Area Health Authority  UKHL7,  1 FLR224, Keehan J found that C was Gillick competent and was capable, in law, of consenting to his confinement at the unit.
Keehan J accepted that C had and would continue to seek the push the boundaries of the restrictions placed upon him and to seek to object or complain about some elements of them, as well as occasionally breach the house the rules. However, he held that, on the facts, C did in fact consent to his confinement and therefore the issue of the court authorising his confinement under the inherent jurisdiction did not arise.
The court’s conclusion that C was confined (i.e. that the objective limb of the Article 5 test for deprivation of liberty was satisfied) is unsurprising one, despite arguments made on behalf of C that he was not being deprived of his liberty. It was submitted on behalf of C that no child who was subject to a care order is free to leave and live with whom they want to, and that this case had the prospect of bringing within the purview of the non-statutory DOLS regime all children who live in care homes or are in foster care. However, this is not the first time that this prospect has been raised. It should not be forgotten that the Supreme Court in Cheshire West and Chester Council v P; Surrey County Council v P & Q  UKSC 19 considered that the arrangements for two sisters in foster care amounted to a deprivation of liberty, MEG being 17 at the time that the case began before Parker J.
Keehan J’s conclusion that D was able – in law – to consent to that confinement is surely correct, although sits oddly (on one view) with the very different view of consent expressed by the Court of Appeal in the MM case discussed elsewhere in this report. His conclusion that, on the facts, C was consenting is more questionable, even if perhaps understandable at a pragmatic level given the legal complexities that would arise in the event that he did not consent.
We still await, of course, the determination by the Court of Appeal of the question of whether a parent can consent to the confinement of a child (whether of any age, or solely aged 15 and below, and whether only where the child lacks capacity to consent or in all situations all being questions that arose during the course of the hearing before the Court of Appeal in February 2017 of the appeal against the decision of Keehan J in Birmingham CC v D).
Finally, although the issue did not arise on the facts of the case (and the court’s comments are strictly obiter), it is of interest to note that the court did consider whether it could exercise its powers under the inherent jurisdiction to authorise a deprivation of C’s liberty if C did not consent to his confinement. The Official Solicitor, who acted on behalf of C’s mother (known as D) argued that the use of the inherent jurisdiction to authorise a deprivation of liberty was not compliant with Article 5. Keehan J called this a “bold submission”. It was submitted hat the use of the inherent jurisdiction was not accessible – there is no statute, no statutory or non-statutory governmental guidance, and there is no way to find out the basis on the out the basis on which the inherent jurisdiction would be invoked other than through a decision of the court. It was not precise and not foreseeable as there were no definitive criteria for its use. Keehan J rejected the Official Solicitor’s submission and was satisfied that the use of the inherent jurisdiction to authorise the deprivation of liberty of a child or young person was compliant with the procedural requirements of Article 5. However, as the issue did not need to be determined in this case, no further guidance or criteria were provided that could be helpful in future inherent jurisdiction cases.
 In line with standard editorial practice, this being a case in which Tor is currently involved, she has not been involved in the production of this note.