Re Z (A Child: Deprivation of Liberty: Transition Plan)
In Re Z (A Child: Deprivation of Liberty: Transition Plan) [2020] EWHC 3038 (Fam), Knowles J considered the situation of a 14 year old boy with autism and PDA traits who needed to be moved from their home to a residential school. The local authority sought permission to authorise Z's deprivation of liberty during the transfer under the inherent jurisdiction. There was no dispute that the move, the transfer arrangements and the new placement were in Z's best interests, although Z himself had a very troubled history with school placements and was said to have become verbally aggressive and physically violent when he was told of the plan. The parties agreed that Z's placement at the school did not require court authorisation – apparently on the basis that his parents could consent to any deprivation of liberty, and the use of 'reasonable force' to manage his behaviour in school would fall under s.93 Education and Inspections Act 1996.
The court was therefore only asked to look at the transfer plan, which included the presence of the police and the use of medication and physical restraint as a last resort if Z would not go to the school otherwise: "it was eventually envisaged that staff would physically hold him and lead him to the car."
The court held that the local authority should have permission under s.100 CA 1989 to apply to invoke the inherent jurisdiction, and authorised the plan.
In the event, Z went to the school without restraint being required, so the arrangements considered and authorised by the court were not required.
The judgment might be thought to raise more questions than it answers. Why could Z's parents not consent to any deprivation of liberty occasioned by the transfer plan – current caselaw confirms that parents can consent to what would otherwise be a deprivation of liberty on behalf of a child aged under 16. The court formed the view that the transfer plan fell outside the bounds of parental consent even for a child under 16 because it envisaged the use of restraint, and so independent oversight was required. No contrary argument appears to have been advanced before the court.
Is the implication that any use of force that might amount to a deprivation of liberty must be authorised by a court? Apparently not, as the court was satisfied that Z's care at the residential school – a 52 week placement where physical restraint was envisaged – did not require court approval. The court proceeded on the basis that there were statutory provisions concerning the use of restraint in educational settings, and this provided an adequate legal framework. In fact, the use of excessive and unlawful restraint and seclusion in special schools is a very real problem, and the statutory frameworks alluded to in this judgment do not in themselves provide any recourse to the courts for a child or concerned parent or advocate, nor any independent monitoring. While a claim for judicial review or under the Equality Act or Human Rights Act could be brought after problems have been identified, there is no automatic oversight of such placements beyond standard local authority reviews of children placed pursuant to s.20 CA 1989. One is left with the puzzling conclusion that a short period of physical restraint to get a child from A to B requires the approval of a High Court Judge, while a child's admission to a permanent residential placement where restraint could be used on a daily basis, does not.
