Re A-F (Children)
Judge: Family Division (Sir James Munby P)
Citation:  EWHC 138 (Fam)
Sir James Munby P has pronounced upon two key issues in relation to deprivation of liberty and children:
- When is a child to be considered to be confined (i.e. for the purpose of the first of the three limbs required to establish a deprivation of liberty, the other two being a lack of valid consent and imputability to the state)?
- If a child is confined, and no person with true parental responsibility can give consent on their behalf (including where the child is subject to a care order or is in foster care), what process should be followed to obtain the necessary authorisation?
In a wide-ranging judgment, Sir James Munby P reached the following conclusions which are, in general terms, directed to all those under 18, but will (in reality) be particularly relevant to those aged under 16 as they are predominantly directed to applications to be made in conjunction with care proceedings. For those aged 16/17, the more likely route will be the Re X process, especially where there is any prospect that the individual’s circumstances are such that they are likely to continue to be deprived of their liberty post 18 in circumstances not covered by DOLS and/or otherwise to continue to be subject to the jurisdiction of the Court of Protection.
Although it is necessary to have regard to the actual circumstances of the child and comparing them with the notional circumstances of the typical child of (to use Lord Kerr’s phraseology from Cheshire West) the same “age”, “station”, “familial background” and “relative maturity” who is “free from disability,” (but not a ‘typical child’ subject to a care order), a “rule of thumb” is that:
- A child aged 10, even if under pretty constant supervision, is unlikely to be “confined”;
- A child aged 11, if under constant supervision, may, in contrast be so “confined”, though the court should be astute to avoid coming too readily to such a conclusion;
- Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion.
Sir James Munby P outlined when and what steps are required to obtain judicial authorisation for the deprivation of a child as the counterpart of the Re X process for those aged 16+, summarised below.
Need to apply to the court: An application to the High Court for the exercise of its inherent jurisdiction should be made where the circumstances in which the child is, or will be, living constitute, at least arguably (taking a realistic rather than a fanciful view), a deprivation of liberty.
What has to be approved There is no need for the court to make an order specifically authorising each element of the circumstances constituting the “confinement”. It is sufficient if the order (i) authorises the child’s deprivation of liberty at placement X, as described (generally) in some document to which the order is cross-referenced, and if appropriate (ii) authorises (without the need to be more specific) medication and the use of restraint.
Process The key elements of an Article 5 compliant process can be summarised as follows:
- If a substantive order (interim or final) is to be made authorising a deprivation of liberty, there must be an oral hearing in the Family Division (though this can be before a section 9 judge). A substantive order must not be made on paper, but directions can, in an appropriate case, be given on paper without an oral hearing.
- The child must be a party to the proceedings and have a guardian (if at all possible the children’s guardian who is acting or who acted for the child in the care proceedings) who will no doubt wish to see the child in placement unless there is a very good child welfare reason to the contrary or that has already taken place. The child, if of an age to express wishes and feelings, should be permitted to do so to the judge in person if that is what the child wants.
- A ‘bulk application’ (see the Re X cases) is not lawful, though in appropriate circumstances where there is significant evidential overlap there is no reason why a number of separate cases should not be heard together or in sequence on the same day before one judge.
Evidence The evidence in support of the substantive application (interim or final) should address the following matters and include:
- The nature of the regime in which it is proposed to place the child, identifying and describing, in particular, those features which it is said do or may involve “confinement”. Identification of the salient features will suffice; minute detail is not required.
- The child’s circumstances, identifying and describing, in particular, those aspects of the child’s situation which it is said require that the child be placed as proposed and be subjected to the proposed regime and, where possible, the future prognosis.
- Why it is said that the proposed placement and regime are necessary and proportionate in meeting the child’s welfare needs and that no less restrictive regime will do.
- The views of the child, the child’s parents and the Independent Reviewing Officer, the most recent care plan, the minutes of the most recent LAC or other statutory review and any recent reports in relation to the child’s physical and/or mental health (typically the most recent documents will suffice).
Interface with care proceedings
- If, when care proceedings are issued, there is a real likelihood that authorisation for a deprivation of liberty may be required, the proceedings should be issued in the usual way in the Family Court (not the High Court) but be allocated, if at all possible, to a Circuit Judge who is also a section 9 judge. Sir James agreed that thought should be given to amending the C110A form to enable the issue to be highlighted.
- Where care proceedings have been allocated for case management and/or final hearing to a judge who is not a section 9 judge, but it has become apparent that there is a real likelihood that authorisation for a deprivation of liberty may be required, steps should be taken if at all possible, and without delaying the hearing of the care proceedings, to reallocate the care proceedings, or at least the final hearing of the care proceedings, to a Circuit Judge who is also a section 9 judge.
- The care proceedings will remain in the Family Court and must not be transferred to the High Court (note that a District Judge or Circuit Judge has no power to transfer a care case to the High Court: see FPR 29.17(3) and (4) and PD29C). The section 9 Circuit Judge conducting the two sets of proceedings – the care proceedings in the Family Court and the inherent jurisdiction proceedings in the High Court – can do so sitting simultaneously in both courts.
- If this is not possible, steps should be taken to arrange a separate hearing in front of a section 9 judge as soon as possible (if at all possible within days at most) after the final hearing of the care proceedings. Typically, there will be no need for the judge to revisit matters already determined by the care judge, unless there are grounds for thinking that circumstances have changed; indeed, the care judge should, wherever possible and appropriate, address as many of these issues as possible in the care proceedings judgment.
- The evidence should include, in addition to all the other evidence required in the care proceedings, evidence on the matters referred to above. These matters should also, mutatis mutandis, be included in the section 31A care plan put before the court in the care proceedings.
- Where the care proceedings have been concluded for some time, the process will be the ‘standalone’ one indicated above.
Review Continuing review is crucial to the continued lawfulness of any “confinement”. What is required are:
- Regular reviews by the local authority as part of its normal processes in respect of any child in care.
- A review by a judge at least once every 12 months. The matter must be brought back before the judge without waiting for the next 12-monthly review if there has been any significant change (whether deterioration or improvement) in the child’s condition or if it is proposed to move the child to a different placement.
- The child must be a party to the review and have a guardian (if at all possible the guardian who has previously acted for the child).
- If there has been no significant change of circumstances since the previous hearing / review, the review can take place on the papers, though the judge can of course direct an oral hearing. The form of the next review is a matter on which the judge can give appropriate directions at the conclusion of the previous hearing.
For those familiar with the Re X debates and process, the approach adopted by the President is unsurprising, save in one regard, namely the absence of any discussion of whether medical evidence of unsoundness of mind is required. We understand from Kate Burnell of St John’s Building Chambers (instructed for the children’s guardians) that there was discussion at the hearing – which does not feature in the judgment – as to which limb of Article 5 is in play in these cases. With children, unlike with those over 18, it would in some cases be possible to rely upon Article (1)(d) (i.e. deprivation of liberty for purposes of ‘educational supervision’). A local authority applicant will need to consider which limb to hang its hat on and adduce evidence accordingly.
We also note that the Official Solicitor is still (!) waiting for the Legal Aid Agency to determine whether legal aid will be granted to apply for permission to appeal to the Supreme Court in the case of Re D (a child)  EWCA Civ 1695, in which the Court of Appeal held that parents could in principle consent to the confinement of their incapacitated child. In the meantime, however, we are aware of a case involving in February 2018 Charles J made an order authorising the deprivation of liberty of a 16 year old in a residential placement even where it appeared that the parent was consenting to the arrangements as being the child’s best interests. Charles J appeared to take the view that the court was not precluded by Re D from making such an order where it was in P’s best interests to do so notwithstanding that a parent could, in principle, consent to the arrangements. Unfortunately, there is no judgment publicly available as the position was agreed between the parties and endorsed by the court.