Northumberland County Council v MD, FD and RD
Judge: Cobb J
Citation:  EWFC 47
The issue in this case was whether RD was deprived of her liberty for the purposes of Article 5. RD was 14½ years old and accommodated in a residential placement referred to as Lennox House in Scotland. She did not have the capacity or Gillick competence to give her consent to the care arrangements. Nor could her parents or the local authority do so as she was under an interim care order. The only issue was whether the arrangements satisfied the acid test.
Lennox House was a large detached house in a rural setting accommodating six young people, with a staff ratio of 4:6. Mr Justice Cobb set out the key information:
- RD is given a wake-up alarm call each morning, and then is left to her own devices to dress/wash and prepare for the day;
- She has her own room; there is a lock on the door which she can use to lock herself in, or to lock when she leaves for school (or otherwise) so that her belongings are safe; the staff have a master key; I have the impression that the lock is for RD’s benefit not the staff’s. RD is never locked in her room by the staff, nor are internal doors locked to manage her (or others’) behaviour;
- RD helps around meal times “which are similar to many households” (per social worker) and she can choose to have free time after her supper with her peers and staff;
- RD can move around Lennox House as she chooses; there are generally staff around the communal areas to support the young people; it is said that the staff do not supervise the young people or place them “under surveillance”;
- In her leisure time, RD has the freedom to watch television in a communal area; she can have time in her room when she wishes to be alone;
- RD enjoys attending a boxing club; she is taken there (with another young person from Lennox House) by a member of staff;
- RD enjoys shopping and is taken into town by a member of staff who remains with her in town; she enjoys spending time with an animal therapist and enjoys horse riding;
- RD can go out into the grounds of Lennox House alone, but her visits outside the building are monitored by a member of staff watching (generally from within the house); if RD goes outside into the grounds in a group, a member of staff accompanies them to monitor/supervise;
- When RD was more settled, she was trusted to make short excursions in daylight hours from Lennox House alone to a local shop in the village; this opportunity has been denied her lately given her recent abscondences;
- RD travels the hour to school by car or minibus with the other young people from Lennox House, accompanied by a member of staff. The staff member remains at the school during the hours in which RD is receiving her education, in case there are behavioural issues which require resolution; the member of staff is not generally in the classroom with her;
- RD enjoys fortnightly visits from her family; these visits often take place in the presence of staff, for both supervision and support – there are practical reasons for staff involvement: transport / unfamiliarity of the locality to the family. The family say that they welcome the staff on the visits, and have indicated that they would like this arrangement to remain in place until they feel more familiar with contact taking place in the community, which is unfamiliar to them;
- RD enjoys and seeks out opportunities for adult 1:1 time with a staff member; RD will often try to isolate a member of staff out to obtain this sole attention;
- RD currently does not have her own mobile telephone (I believe a choice of her parents taken with her), but she can access the house phone at any time and make calls, which are not supervised; she does indeed call her parents most days, and calls her social worker when she feels the need to do so; there is no restriction (so I understand) on RD having a mobile phone;
- Internet is available in the unit, but it is regulated by a safety feature which blocks social media and inappropriate sites; RD has access to an iPad on site; iPad use is not supervised; search histories are checked randomly.
In relation to the acid test, his Lordship noted:
29 … Two phrases fall for scrutiny under the ‘acid test’: (1) “complete supervision and control” and (2) freedom or lack of freedom “to leave the place where she lives”. The second of these phrases on these facts has no application. ‘Free to leave’ does not mean leaving for the purpose of some trip or outing approved by those managing the institution; it means leaving in the sense of removing herself permanently in order to live where and with whom she chooses. It is accepted wisdom that a typical fourteen or fifteen-year old is not free to leave her home.
The core issue, therefore, was whether RD was under ‘complete or constant supervision and control’. The court’s view was “that ‘complete’ or ‘constant’ defines ‘supervision’ and ‘control’ as indicating something like ‘total’, ‘unremitting’, ‘thorough’, and/or ‘unqualified’” (para 31). After helpfully setting out the important passages from the case law at para 32, his Lordship made “a finely balanced decision” (para 35), comparing the arrangements with the notional circumstances of the typical child of the same age, station, familial background and relative maturity who is free from disability:
- The impression I have formed from the statements and reports is that the regime at Lennox House is boundaried, yet supportive. Naturally the staff keep watchful eyes on the young residents, particularly when they cluster, but I do not discern that this level of monitoring is any more intense or overt than a parent’s watchfulness over young adolescent people in a domestic setting, in similar circumstances. The presence of staff in the home is, I am satisfied, in significant measure to give the young people support and attention. These young people, because of their needs, require 1:1 attention and support at times; this is qualitatively different from 1:1 supervision. RD avowedly craves this kind of attention. Contrary to the submission of Mr. Wilkinson, I am not persuaded that the staff ratio indicates of itself that the residents are subject to complete or constant supervision and control.
- It is the issue of supervision or surveillance and/or control which gives rise to the most difficult question on the facts of this case: i.e. to what extent the ‘supervision’ of the staff over RD is different from the watchful eye or supervision of a reasonable parent? It is not immaterial to my assessment that RD is described as a 14-year old who appears younger than her chronological age (see  above). It is fair to reflect that the degree of supervision may well be greater for her given her ‘younger’ presentation or late evolving maturity than it would be for a more mature 14-year old. Nor is it immaterial that RD herself does not feel “watched” all the time (see  above), which in itself is a reflection of the actual extent of the supervision.
- The monitoring of RD as she ventures out into the grounds of Lennox House ((viii) above) is, it seems to me, ordinary quasi-parental good sense. The fact that Lennox House stands on a busy road would be a matter of concern to any parent; a rash and unthinking excursion onto the road by any young person would place them at risk. As I have earlier indicated, the fact that the staff accompany RD and her parents on some but not all of her contact visits ((xi) above) is more by way of support than supervision, particularly given that the parents have struggled with RD’s behaviours in the past; moreover, and not insignificantly, the parents are unfamiliar with the local area, and without transport on their visits.
- There are restrictions on RD’s movement, for sure. She does not enjoy the freedoms to wander in to a town as a 14½ year old young person may have the opportunity to do if living in an urban area. This restriction at least in part (perhaps a significant part) arises because of the geographic location of Lennox House – its distance from the local town and village, its distance from school, and is not in my finding because it is a function of any ‘complete control or supervision’ of the State. Restrictions of movement in this way do not engage considerations of ‘deprivation’ under Article 5 (see Guzzardi above). I am satisfied that when the staff regard it as safe for RD to be able to pay a visit independently to the local village shop (involving a walk along the A road in daylight), they let her do so, much as a parent may well do.
- Plainly when RD’s behaviour (her abscondences, disobediences, and/or her distress) justify some restrictions on her movement, these are appropriately applied and enforced; but every 14-year old is liable to appropriately imposed boundaries and sanctions. One of the obvious consequences of behaviourally acting out (for whatever reason) has been, for RD, the increase in the level of supervision, albeit for a short time. This is not altogether surprising; just as parents may temporarily ‘ground’ a teenager, or a boarding school head may impose limitations or tighter restrictions on a pupil’s ability to leave the campus, there is an element of ‘teaching a lesson’ aswell as promoting future safety (see Re K at  above). Generally, RD has the freedom to wander around the home, and it seems to me that she enjoys a significant degree of autonomy about her recreation there while not at school.”
When RD had temporarily absconded, she returned voluntarily or by persuasion and, not being distracted by the protective or “comparative benevolence” of Lennox House and RD’s general compliance with its regime, the court held:
- All children are, or should be, as I have discussed subject to some level of restraint, adjusted to their degree of maturity; so too is RD. It is against that background that I assess RD’s situation. Having reviewed all the circumstances, and for the reasons which I have set out above, I have reached the conclusion, on a fine balance, that the regime at Lennox House does not possess the “degree or intensity” of complete control or supervision of RD which justifies the description of ‘deprivation’ of her liberty. In my judgment, insofar as the staff impose limits or boundaries on her movements and freedoms, these represent restrictions of the type which a child of her age, station, familial background and relative maturity would have placed upon her.
Accordingly, there was no deprivation of liberty so it was not necessary to present a petition to the nobile officium of the Court of Session in Scotland (i.e. the exercise of the equivalent of the inherent jurisdiction) for its authorisation.
This is the latest in a series of cases which have tackled the implications of the Cheshire West decision for those under 18. One of the most challenging aspects of the law is in identifying the “notional circumstances of the typical child of the same age, station, familial background and relative maturity who is free from disability”. The level of detail provided in this judgment helpfully enables practitioners to determine those circumstances for someone aged 14, with other general rules of thumb for 10-12 year olds available in Re A-F  EWHC 138
 “I make the important point here that the presence or absence of a lock on the door is not determinative of the issue: see Ashingdane v United Kingdom ( A/93): (1985) 7 E.H.R.R. 528 at : a compulsory patient is deprived of his liberty in the hospital where he is detained, irrespective of the openness or otherwise of the conditions there.” (footnote in original)