Mental Capacity Case

Hertfordshire CC v NK and AK

Family Division (MacDonald J)

In this case, MacDonald J declined to make an order a DoL order in respect of a 16 year old, on the basis that he did not consider that the child's current circumstances amounted to a deprivation of his liberty.  Those circumstances at AK's placement, described at paragraph 10, were these:

i) The internal and external doors are not locked and AK is able to exit the property (AK has for example left for a cigarette with the knowledge of the staff and returned of his own accord);

ii) AK has flexible, unsupervised contact with his mother two or three times a week and the length of those visits is dictated by AK and his mother. AK is dropped off and collected by the staff from [Y]. The collection occurs when AK states he is ready to return;

iii) During his time on the unit he is subject to 2:1 supervision (AK has stated he would like this to reduce to 1:1 supervision)

iv) AK has unlimited access to, and use of his mobile telephone, the Internet and to his X-Box.

v) When in his room at the unit AK is checked on every 15 minutes;

vi) AK's room is not searched and neither is AK;

vii) AK has a planned daily schedule and is rewarded financially for compliance. (emphasis in original)

MacDonald J found that:

  1. The question of whether AK is restricted to an extent that constitutes a deprivation of his liberty by reference to the applicable criteria set out above is as a matter of fact that falls to be determined by comparing the extent of the AK's actual freedom with someone of the child's age and station whose freedom is not limited. Having regard to the current situation for AK in his placement, I am not satisfied that the level of supervision and control to which AK is subject is sufficiently different from a child of AK's age and station to constitute a deprivation of liberty for the purposes of Art 5 of the ECHR.
MacDonald J was further unpersuaded that the local authority had in place a more restrictive care plan which would be implemented if AK's behaviour deteriorated.  First, whilst he accepted an anticipatory order could be made in principle, it was an exceptional remedy and one to be used sparingly.  Second, he considered that in deciding whether given restrictions constitute a deprivation of a child's liberty, it was the current situation of the child that ordinarily falls for consideration by the court.  Third, there was a significant concern with the approach being urged upon him by the local authority:
  1. The local authority's position amounts to the court being asked to confer upon an applicant local authority a continuing and contingent authority to deprive a child of his or her liberty if it becomes necessary to do so at some unidentified future point upon the local authority's assessment that this course of action is in the child's best interests. In Re D at [41] Baroness Hale made clear that the protection afforded by Art 5 of the ECHR is precisely so that there can be an independent assessment whether the arrangements that constitute a deprivation of liberty can b[2020] EWHC 139 (Fam)
e said to be in a person's best interests. It is implicit in the authorities that I have mentioned above that that assessment by an independent authority falls to be made at the point at which it is said the person is deprived of their liberty. Within this context, the making of an anticipatory order in favour of the local authority that will govern a situation that may or may not pertain in the future deprives the court of the ability to conduct an independent assessment of the circumstances of AK at the point in time his liberty is said to be deprived, in a situation that is likely to be highly fluid and that could change on a day by day basis.
  1. Whilst on behalf of the local authority Ms Branson submitted, relying the observations of Sir James Munby, P in A-F [2018] EWHC Fam 138 at [46] to [49], that a DOL order does not need to authorise each and every element of the circumstances that constitute confinement, the court's evaluation prior to granting such an order must condescend to the detailed circumstances which are said to justify the order at the point at which it is said that order is justified. In an urgent situation, this can be achieved by an immediate application to the urgent applications judge sitting in the Family Division, made to the Out of Hours Judge if necessary. (emphasis in original)
Further, he could see wider disadvantages to the making of contingent or anticipatory DOL orders authorising the deprivation of liberty of vulnerable children on the happening of some future event.
  1. […] The current use of DOL orders to restrict the liberty of children in residential placements is a remedy that sits outside the statutory regime established by Parliament, after due consideration and debate, for the secure accommodation of children pursuant to s 25 of the Children Act 1989.
  2. In these circumstances, in the absence of a clear legislative intent and where the liberty of the subject is at stake and any restriction on that liberty will constitute a serious interference with the fundamental rights of the individual, the court must be extremely chary of proceeding in a manner that would have the effect of conferring on a local authority a wide discretion to regulate the deprivation of a child's liberty (as I am satisfied would be one of the clear effects of granting a contingent or anticipatory order to be implemented at some future date upon the local authority's own best interests assessment at that time) without the strict oversight that comes with granting a DOL order only after the court has evaluated the child's current situation by reference to the demands of the imperatives contained in Art 5 of the ECHR. I agree with Mr Sharp that this would amount to a significant, and undesirable, extension of the use of the inherent jurisdiction in cases of this nature.
MacDonald J did not rule out that an order would never be granted in respect of an arrangement that had not yet been implemented, but would be:
  1. […] However, I anticipate that before making such an order the court will need cogent evidence that the regime proposed will be the regime that will be applied to the child if the DOL order is granted, rather than the far more speculative situation that pertains in this case.
MacDonald J emphasised:
  1. It is important that the local authority understands what the decision I have reached does not do. The decision of the court does not allow the local authority now to implement its stated care plan in full without a DOL order. Similarly, in circumstances where the local authority has contended before the court that the full implementation of the care plan at some future date would constitute a deprivation of AK's liberty for the purposes of Art 5, my decision does not absolve the local authority of the need to apply to the court for a DOL order if it decides at some future point to implement its stated care plan in full. In such circumstances, if the local authority determines at that future date that AK's welfare requires the care plan to be implemented in full, the local authority will need to at that point make the appropriate application and the court will make its determination. The decision of the court simply reflects, for the reasons I have given above, the consequence of none of these contingent events having yet come to pass.

Each case is fact specific, but we suggest particular caution before seeking to translate MacDonald J's conclusions in respect of AK's circumstances to an adult.  The 'acid test' in relation to those under 18 would still appear to be capable of being 'nuanced' to reflect the restrictions society would expect to be in place for a young person.  But such nuancing falls away when the person turns 18.

Further, whilst MacDonald J was undoubtedly correct to be concerned at the speculative nature of the contingent declaration being sought by the local authority, it should perhaps be observed that the Court of Protection is very routinely asked to endorse plans amounting to a deprivation of liberty that are not yet in force, but will be upon discharge (say) from hospital.  Indeed, both DoLS and (in due course) LPS are predicated also upon the ability to authorise a deprivation of liberty up to 28 days in advance.   Perhaps the key difference in the instant case was the local authority had not put sufficient evidence before the court: (a) that the restrictions would, in fact, be put in place; and (b) to satisfy the court that they amounted to a deprivation of liberty and were necessary and proportionate.