Mental Capacity Case

Re AB (A Child: human rights)

Mr Dexter Dias QC, sitting as a High Court Judge


AB was 13 and a special guardianship order was made in favour of his paternal grandmother as his parents were unable to care for him. He was diagnosed with autism, oppositional defiant disorder and attachment issues, and further problems developed leading to an interim care order by which he was placed in foster care. Those carers were similarly unable to care for him due to his complex needs and emotional dysregulation, so he was placed in a privately run care home. He was unlawfully deprived of liberty for 4 months because no application was made by the local authority despite repeated request by the Children's Guardian:

  1. I have emphasised in proceedings that this historic illegality is a matter of the gravest concern to the court. This court exercises its inherent jurisdiction not as a mere technicality, but as a constituent part of the rule of law. To have a person confined without lawful authority, and particularly a child, and particularly an exceedingly vulnerable child, is a matter of the utmost seriousness. It is a fundamental interference with the child's rights under the European Convention on Human Rights and the UN Convention on the Rights of the Child.
Following the delay, an application to authorise AB's deprivation of liberty was made but issues arose regarding the placement. He had been physically restrained 17 times whilst there and a scathing report was produced by two Ofsted inspectors. AB was in a neglected, chaotic and unsafe environment, whose living conditions shocked even senior managers of the company that operated the home. Its registration was immediately suspended, action was taken against staff, and the children were moved out.

In relation to the new placement, the local authority applied for the following restrictions to be authorised for AB under the inherent jurisdiction of the High Court:

  1. Inability to have access to gaming technology except for devices and games that are agreed by staff, and except during times agreed by the staff for AB to engage in gaming.
  2. Not being allowed in a peer's room without being supervised for the safety of both AB and his peers.
  3. Inability to leave the placement on his own due to his age and his limited understanding of safety and his local area.
  4. AB to receive 1:1 support where he is supervised by a member of staff for 8 hours a day.
Looking at the three elements of a deprivation of liberty, the judge held that these restrictions far exceeded what would be imposed on a non-disabled 13-year-old and therefore amounted to confinement. He was not satisfied that AB validly consented to it, with serious concerns as to whether he was Gillick competent to a meaningful level. With the State being responsible, the circumstances therefore amounted to a deprivation of liberty. As to whether to authorise it in AB's best interests, after the turmoil of the previous placement, the judge found that the current one met his welfare needs and authorised the arrangements to protect AB from significant harm. The local authority no longer sought authorisation to restrain, there having been no incidents at the new placement.


The judgment, which only recently appeared on Bailii, contains a helpful and comprehensive summary of the relevant jurisprudence, and the various regulations and inspection provisions relating to children. The liberty deprivation was authorised under Article 5(1)(d) ("educational supervision") on a best interests basis (para 80), double checked by a necessity and proportionality test (para 93). The judge emphasised the positive obligations on not just the local authority but also on the Children's Guardian to take proactive steps, such as to restore the matter to court, to prevent avoidable safeguard lapses if others failed to do so (paras 177-179). There is also a set of conclusions in an Appendix to the judgment which may helpfully provide a roadmap of issues for parties and judges in similar cases:

Stage 1. AB's Art. 5, Art. 8 and Art. 3 ECHR rights and Art. 3 and 37 UNCRC rights are engaged.

Stage 2. The necessary conditions for a s.25 Children Act 1989 order are not satisfied, therefore the appropriate legal pathway to seek authorisation of the deprivation of AB's liberty is the inherent jurisdiction of the court.

Stage 3. The two conditions for invoking the inherent jurisdiction are satisfied:

Condition 1: the circumstances of AB's placement at Ford Cottage constitute a deprivation of liberty: he is unable to consent to his confinement; he is subject to continuous supervision and control; he is not free to leave. Further, the circumstances meet the Storck test:

  • (a) The confinement is for a not negligible period of time;
  • (b) AB cannot and does not validly consent to the confinement, nor is there anyone who shares parental responsibility for him who can;
  • (c) The confinement is attributable to the responsibility of the State.
Condition 2: the deprivation is in AB's best interests considering his welfare holistically, in light of his complex presenting needs and how the arrangements can support and promote his welfare and development.

Leave: The statutory leave conditions under s.100(4) Children Act 1989 are satisfied and the court grants the local authority leave because:

  • (a) No other order would succeed in keeping AB safe;
  • (b) There is reasonable cause to believe that without exercising the court's inherent jurisdiction, AB is likely to suffer significant harm.
Proportionality: The deprivation sought is necessary and proportionate:
  • (a) Protecting AB from significant harm is a sufficiently important and legitimate aim to justify significant curtailment of his Art. 5 ECHR rights;
  • (b) The measures sought by the local authority are rationally connected to and further the protection of his safety and promotion of his welfare;
  • (c) Less intrusive measures would unacceptably compromise his personal security and welfare, rendering the measures necessary;
  • (d) The balance between liberty and welfare has been struck in a proportionate way: the benefit of safeguarding AB's welfare outweighs the intrusion into his protected rights.