T (A Child) [2018] EWCA Civ 2136

“(1) Subject to the following provisions of this section, a child who is being looked after by a local authority in England or Wales may not be placed, and, if placed, may not be kept, in accommodation in Englandor Scotland provided for the purpose of restricting liberty (“secure accommodation”) unless it appears— (a) that— (i) he has a history of absconding and is likely to abscond from any other description of accommodation; and (ii) if he absconds, he is likely to suffer significant harm; or (b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons. (i) he has a history of absconding and is likely to abscond from any other description of accommodation; and (ii) if he absconds, he is likely to suffer significant harm; or (b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons. (2) The Secretary of State may by regulations— (a) specify a maximum period— (i) beyond which a child may not be kept in secure accommodation in Englandor Scotlandwithout the authority of the court; and (ii) for which the court may authorise a child to be kept in secure accommodation in Englandor Scotland; (b) empower the court from time to time to authorise a child to be kept in secure accommodation in Englandor Scotland for such further period as the regulations may specify; and (c) provide that applications to the court under this section shall be made only by local authorities in England or Wales. (3) It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case. (4) If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept. (5) On any adjournment of the hearing of an application under this section, a court may make an interim order permitting the child to be kept during the period of the adjournment in secure accommodation. (5A) Where a local authority in England or Wales are authorised under this section to keep a child in secure accommodation in Scotland, the person in charge of the accommodation may restrict the child’s liberty to the extent that the person considers appropriate, having regard to the terms of any order made by a court under this section. (6) No court shall exercise the powers conferred by this section in respect of a child who is not legally represented in that court unless, having been informed of his right to apply for the provision of representation under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012and having had the opportunity to do so, he refused or failed to apply. (7) The Secretary of Statemay by regulations provide that— (a) this section shall or shall not apply to any description of children specified in the regulations; (b) this section shall have effect in relation to children of a description specified in the regulations subject to such modifications as may be so specified; (c) such other provisions as may be so specified shall have effect for the purpose of determining whether a child of a description specified in the regulations may be placed or kept in secure accommodation in Englandor Scotland. (d) a child may only be placed in secure accommodation that is of a description specified in the regulations (and the description may in particular be framed by reference to whether the accommodation, or the person providing it, has been approved by the Secretary of State or the Scottish Ministers). (8) The giving of an authorisation under this section shall not prejudice any power of any court in England and Wales or Scotland to give directions relating to the child to whom the authorisation relates. (8A) Sections 168 and 169(1) to (4) of the Children’s Hearings (Scotland) Act 2011 (asp 1) (enforcement and absconding) apply in relation to an order under subsection (4) above as they apply in relation to the orders mentioned in section 168(3) or 169(1)(a) of that Act. (9) This section is subject to section 20(8).”

“(1) Subject to the following provisions of this section, a child who is being looked after by a local authority or a local authority in England may not be placed, and if placed, may not be kept, in accommodation in Wales provided for the purpose of restricting liberty (“secure accommodation”) unless it appears— (a) that the child— (i) has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) is likely to suffer significant harm if the child absconds, or (b) that if the child is kept in any other description of accommodation, he or she is likely to injure himself or herself or other persons.” (i) has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) is likely to suffer significant harm if the child absconds, or (b) that if the child is kept in any other description of accommodation, he or she is likely to injure himself or herself or other persons.”

“3 (i) Accommodation in a children’s home shall not be used as secure accommodation unless: a) In the case of accommodation in England, it has been approved by the Secretary of State for that use; b) In the case of accommodation in Scotland, it is provided by a service that has been approved by the Scottish Ministers under Paragraph 6(b) of Schedule 12 of the Public Services Reform (Scotland) Act 2010. c) Approval by the Secretary of State under Paragraph 1(i) may be given subject to any terms or conditions that the Secretary of State thinks fit.” a) In the case of accommodation in England, it has been approved by the Secretary of State for that use; b) In the case of accommodation in Scotland, it is provided by a service that has been approved by the Scottish Ministers under Paragraph 6(b) of Schedule 12 of the Public Services Reform (Scotland) Act 2010. c) Approval by the Secretary of State under Paragraph 1(i) may be given subject to any terms or conditions that the Secretary of State thinks fit.”

“8. A local authority may only place a looked after child in secure accommodation: a) provided in Wales by a secure accommodation service in respect of which the provider is registered, b) In a home in England which is registered under Part 2 of the Care Standards Act 2000 as a children’s home providing accommodation for the purpose if restricting liberty, or c) provided by a secure accommodation service in Scotland.”

“i) Everyone has the right to liberty and security of person. ii) No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (d) The detention of a minor by lawful order for the purpose of educational supervision…” (d) The detention of a minor by lawful order for the purpose of educational supervision…”

“However, the notion of deprivation of liberty within the meaning of Article 5 (1) not only comprises the objective element of a person’s confinement to a certain limited place for a not negligible period of time. A person can only be considered of being deprived of his or her liberty if, as an additional subjective element, he has not validly consented to the confinement in question.”

“The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev v Bulgaria [2002] 55 EHRR 596 paras 117 and 120, as follows: The objective component of confinement in a particular restricted place for a not negligible length of time; The subjective component of lack of valid consent; The attribution of responsibility to the state.”

“75. Having regard to the national courts’ related findings of fact and to the factors that are undisputed between the parties, the Court observes that the applicant had attained the age of majority at the time of her admission to the clinic and had not been placed under guardianship. Therefore, she was considered to have the capacity to consent or object to her admission and treatment in hospital. It is undisputed that she did not sign the clinic’s admission form prepared on the day of her arrival. It is true that she came to the clinic herself, accompanied by her father. However, the right to liberty is too important in a democratic society for a person to lose the benefit of the Convention protection for the single reason that he may have given himself up to be taken into detention (see De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, p. 36, § 65, and H.L. v. theUnited Kingdom, cited above, § 90).”

“106. One issue raised by the Government (and which has been joined to the merits, see paragraph 71 above) was the fact that the applicant himself had asked to be placed under house arrest and had not challenged the court decisions ordering this measure. This raises an important question, namely whether the applicant had waived his right to liberty. 107. In Storck v. Germany (no. 61603/00, § 75, ECHR 2005-V) the Court held that the right to liberty is too important in a “democratic society” within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the sole reason that he gives himself up to be taken into detention. Detention might violate Article 5 even though the person concerned might have agreed to it (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12). 108. In view of the Government’s submission to the effect that it was the applicant himself who had asked to be placed under house arrest (see paragraph 82 above), the Court notes that in the present case there was a clear element of coercion in the application of this type of measure. In particular, it appears clearly from the facts of the case that the idea behind the applicant’s seeking to be placed in house arrest was to avoid the continuation of his detention in custody after the courts had dismissed his habeas corpus requests on numerous occasions. It also transpires that his state of health considerably deteriorated during his remand in custody and that he was ready to make concessions in order to put an end to it (see paragraphs 14, 24 and 29 above). This is understandable behaviour for a person who had previously suffered a heart attack and a cerebral stroke and who was seeing his health deteriorating. In the Court’s view, the applicant was under a clear state of duress when he was placed under house arrest. In such circumstances, one could not reasonably expect the applicant to challenge the court decisions ordering his house arrest. 109. In view of the above, the Court is not prepared to accept that the applicant’s attitude to his house arrest and omission to challenge the measure amounted to a waiver of his right to liberty.”

“60. The tribunal raised a separate point that RB’s “valid and meaningful consent to a move to [the care home] (a move which would manifestly be in his interests)” would prevent the deprivation of his liberty amounting to a breach of Article 5. It relied on comments in Stork, para 73 that: “...A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question...” 61. We cannot accept this line of reasoning. (As already noted, a similar line of argument was rejected by Collins J in G [2004] EWHC 2193). In Stork the Court found that the Appellant had for part of her stay in a psychiatric institution (from January to April 1981) come to the clinic voluntarily, at a time when she could be assumed to have had capacity and had stayed there voluntarily owing to her need for psychiatric treatment (see paragraphs 122 – 128). 62. By contrast, in the present case it cannot be suggested that RB consented to his initial psychiatric detention. He has at all material times been detained by virtue of an order imposed by the Court under the Mental Health Act 1983. He has never been offered the option of absolute discharge nor is there any prospect of such an offer being made in the foreseeable future. The only alternative presented to RB is to agree to a continuation of his detention within his present regime or to agree the alternative regime contemplated in the Tribunal’s order. This very limited choice cannot be equated to a free and unfettered consent to psychiatric detention or to the conditions proposed by the Tribunal. A person’s consent to alternative conditions of his detention regime is not the same as his consent to the existence the regime itself.” “...A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question...”

“I do not think that consent to continuing deprivation of liberty can confer jurisdiction on a tribunal. A deprivation remains since the consent cannot convert [it] into something else.” 28. We agree with that principle which is equally firmly described in Strasbourg jurisprudence. Where conditions amounting to a deprivation of liberty are compulsorily imposed by law, the agreement of an individual cannot prevent that compulsory confinement from constituting a deprivation of liberty: De Wilde and Ors v Belgium (1979-80) 1 EHRR 373 at [64] and [65]. We need go no further than to express our respectful agreement with the analysis of Convention jurisprudence set out in RB v Secretary of State for Justice [2011] EWCA Civ 1608, in particular at [3] to [14], inclusive. 29. In any event, conditions have to be considered by reference to their real not technical effect. What is the concrete situation of the patient? The question of enforceability, which was raised in submissions by reference to the decision of Charles J in KC, does not assist in that analysis. A condition of residence in itself is not a deprivation of liberty. The most common condition that might be a deprivation of liberty is continuous supervision including the lack of availability of any unescorted leave. Even if the question of consent were to be hypothetically relevant, the patient cannot consent in any irrevocable way. He cannot be taken to have waived or have had his right to withdraw his consent removed. There is no scope for consent in a case such as this. 30. Accordingly, whether a capacitated patient can consent to a deprivation of liberty is not a decisive issue. A purported consent, even if valid, could arguably go no further than to provide for the subjective element of the article 5 test, it cannot create in the FtT / MHRTW a jurisdiction it does not possess to impose a condition that is an objective deprivation of liberty. Article 5 ECHR does not provide any free-standing jurisdiction in a tribunal to impose conditions that have the effect of authorising a deprivation of liberty. A purported consent would also be ineffective in fact. It cannot be an irrevocable consent and it could not act to bind the patient or waive his right to withdraw or rely on, interalia, articles 5 and 6 ECHR at any time thereafter. A deprivation of liberty is an imposition by the state so that examples of enforceable agreements in other contexts are not analogous. 31. If the FtT/MHRTW is satisfied that a patient will validly consent to supervision in the community and that will protect both the patient and the public then it is open to the tribunal to grant an absolute discharge or a conditional discharge on conditions that do not involve an objective deprivation of liberty. The tribunal is well used to identifying cases where there will or will not be compliance with a necessary regime of treatment.”

“Nevertheless, I am satisfied that: a. Limb one of Storck is established; b. C can in law consent to his confinement; c. C does in fact validly consent to the same; and d. therefore the issue of the court authorising his confinement under the inherent jurisdiction did not arise.”

“that, so far as is practicably achievable, that mirror orders made under the inherent jurisdiction conform as much as possible with the prescriptions within section 25 and its subsidiary regulations. Were the court to devise an alternative scheme that deviated significantly from the terms of section 25 (or its Welsh equivalent) there would, as I have said, be a danger of criticism of judicial activism in conflict with a Parliamentary directive.”

“7. The second limb of the formulation requires there to be a lack of valid consent. An interesting question arises, which is relevant to the decision that I have to make, as to whether this requirement has to be demonstrated when an application is determined under section 25 of the Children Act 1989. The notes to the Red Book state that the consent of a young person to the making of a secure accommodation order is not required. The citation for that is Re W (a child) [2016] EWCA (Civ) 804. But that does not really answer the question that I am now posing, which is that if the young person who is the subject of an application under section 25 consents to the application, can the order in fact validly be made? Because in order for there to be a deprivation of liberty, there must be, as the Strasbourg Court has said, present the subjective component of lack of valid consent. So one can see a curious catch-22 arising, which is where the local authority consider that a child should be placed in secure accommodation, and the child through his representatives realises that the case against him or her is very strong, if not overwhelming, and consents to it, that the act of consent in fact prevents the order being made. That cannot be an acceptable construction of the provision, in my respectful opinion, and it is for this reason that consent, or lack of consent, never features in applications under section 25, and that, as Miss Edmondson has eloquently explained, in many cases the applications for these orders are disposed of by consent. 8. So this gives rise to the question whether there must be demonstrated lack of valid consent if the application is being made under the alternative mirror procedure pursuant to the inherent jurisdiction. If the issue of lack of consent is not a requirement under the statutory procedure, and if, as I have suggested, it is important that the alternative mirror procedure conforms as much as possible to the statutory procedure, it is hard to see why there should be an imputation of the lack of consent requirement into the alternative procedure. However, I am persuaded by Mr Laing that all the authorities under the alternative procedure have emphasised strict compliance with the Strasbourg jurisprudence on article 5. Therefore, I do accept, even though this may appear anomalous, that where the court is considering secure accommodation pursuant to the alternative procedure, that it does have to be satisfied of the presence of a lack of valid consent. It may well be that in a case in which an application is being made under section 25 (or under its Welsh sibling) the court will have to consider the point that I have spent some time describing, and whether there does in fact, since the arrival of the Strasbourg jurisprudence to which I have referred, lie latently within section 25 an insoluble catch-22. 9. So I proceed on the basis that in order for the order to be made today, the 3 components have to be present. There is no dispute as to the first and the third. The question is as to whether the second is demonstrated in circumstances where there is active consent by the child with whom I am concerned to the placement in question. 10. This matter was considered by Keehan J in the decision of A local authority v D [2016] EWHC 3473 (Fam) (otherwise known as Re C). It has to be said that in that case the conduct of the children concerned was very much of a lower level of concern to that which I am concerned with. However, Keehan J decided clearly that the child in question could give a valid consent. Moreover, he decided at paragraph 58 that once he was satisfied that valid consent has been given, the fact that he may withdraw that consent at some point in the near future does not negate the valid consent he gave nor does it negate the legal consequences of that consent. I have considered this judgment carefully, and I take from it that the concept of consent does not necessarily mean hearing the words "I do". There must be an authentic consent, and this much is accepted by Mr Laing who represents the child. As he put it, he must say it and mean it. The consent in question must be an authentic consent, and it must be an enduring consent. This means that the court will have to make a judgment as to whether the consent is going to endure in the short to medium term, or whether it is a merely evanescent consent. If the court is satisfied by the history that the consent in question is merely evanescent and is not likely to endure, then, in my judgment, that is not relevant consent for the purposes for which I am concerned. This is, to my mind, to state the obvious. So the court can only make the order in question if it is satisfied that there is a lack of valid consent in the way that I have described it: authentic, and likely to endure.”

“On the last occasion in my judgment I held that the consent, as I have said, can only be found to exist where it is authentic and enduring. That I was correct in that determination is demonstrated by the subsequent events. Notwithstanding that the child on the last occasion expressed to me, seemingly, authentic consent, subsequent events show that within a relatively short period of time, that consent was not genuinely expressed because the events which I have set out occurred. For these reasons, I am satisfied once again, even more satisfied than I was on the previous occasion, that the deprivation of liberty declaration should be given, granting the local authority the powers and protections which I have mentioned in my previous judgment.”

“Therefore, I do accept, even though this may appear anomalous, that where the court is considering secure accommodation pursuant to the alternative [inherent jurisdiction] procedure, that it does have to be satisfied of the presence of a lack of valid consent.”

“… a child … may not be placed … in accommodation … for the purpose of restricting liberty (“secure accommodation”) unless …”

“Finally and above all, the right to liberty is too important in a "democratic society" within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention might violate Article 5 even although the person concerned might have agreed to it”