Mental Capacity Case

Re Daniel X

HHJ Roberts


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:

  1. … the burden should be on the Local Authority to apply back to the court on an application for renewal of the order if appropriate and to prove their case again, albeit on paper, if unopposed and considered appropriate.
  1. It is agreed that 35 days before the expiry of this order Thurrock Borough Council, if it seeks to renew the order, will lodge an application to that effect and include medical evidence to confirm that Daniel still requires that type of accommodation; the evidence lodged will include evidence from the social worker about Daniel's up to date circumstances, possibly a school report, and a report from the [independent reviewing officer] that Y Home is still suitable for Daniel. The parents would then have the opportunity to respond within 14 days of being serve. If the parents agree to the order being renewed or do not reply, the court will consider the application on paper. The Court has the option of appointing a Guardian for Daniel under rule 16.4 of the FPR if thought necessary but I do not think it necessary for a Guardian to be appointed on issue of the application. The Court may make the declaration sought on paper or may list the application for a hearing.

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.