Judge: HHJ Roberts
Citation:  EWFC B31
Daniel X is the youngest (reported) person since Cheshire West to satisfy the nuanced acid test. He was 10 years old with severe autistic disorder and severe learning disability and accommodated in a specialist children’s home, attending school. He was constantly supervised and physical restrictions were used to prevent him leaving. He had regular contact with his parents who agreed with the care order. For reasons explained elsewhere, because of the care order his parents could not consent to his confinement. Article 5 was therefore engaged. As a result, the care proceedings before the magistrates were transferred to a judge of the High Court to have the deprivation of liberty authorised for 12 months.
The inherent jurisdiction and children’s services are still getting to grips with the impact of the Supreme Court’s decision. But this decision is helpful when it comes to authorisation renewals and the evidence expected:
All parties agreed that Daniel was deprived of liberty. So there is little analysis in the judgment as to exactly how the care arrangements satisfied the acid test. But chapter 9 of the Law Society guidance considers the issue. In order to minimise the risk of duplication, and unnecessary costs, in cases where a child is or may be deprived of liberty, local authorities may want to have the care proceedings listed before a Judge with a High Court so that both the care order and the deprivation of liberty can be addressed in one go. There will then be (at least) an annual review of the deprivation of liberty on the papers where there is consensus.