HC (A Minor : Deprivation of Liberty) [2018] EWHC 2961 (Fam)

[2018] EWHC 2961 (Fam)Case No LS 18 C 00477
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Coverdale House
Venue East Parade, Leeds, LS1 2BHDate 5 th November 2018
Before
William Tyler QC, sitting as a Judge of the High Court
Between
A Local AuthorityApplicantThe MotherRespondentsThe FatherRespondentHCRespondent
B e t w e e n :
Ms Semaab Shaikh (instructed by local authority solicitors) for local authorityMichael George (of JWP Solicitors) for childHearing Hearing date: 28 th August 2018
JUDGMENTI direct that, pursuant to CPR PD 39A para 6.1, no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.This anonymised version of the judgment is authorised for publication.William Tyler QC, sitting as a Judge of the High Court:Parties, applications and parties’ positions
[1]HC has just turned 13 years of age. I shall refer to his parents in this judgment as, respectively, M and F, and to his brother as B. HC currently lives in a residential unit in Yorkshire (“the unit”). By application dated 18th July 2018, the local authority responsible for HC’s placement (“the LA”) asks that the court determine whether HC’s placement constitutes a deprivation of his liberty and, if this question is answered in the affirmative, for authorisation, by way of declaratory relief pursuant to the inherent jurisdiction. The allocated social worker I shall refer to as SW, the acting residential manager of the unit as RM and HC’s children’s guardian in these proceedings as “CG”.[2]The LA has been represented before me by Ms Semaab Shaikh, counsel, and HC, through CG, by Mr Michael George, solicitor. I am grateful to both for their assistance and written and oral submissions. Neither M nor F have chosen formally to participate or to be represented, although CG has helpfully obtained and communicated to the court their views.[3]Although the LA brings the application, it does not assert a position one way or the other in relation to whether HC’s placement at the unit constitutes a deprivation of his liberty. Exploring this rather unusual position with Ms Shaikh, I was told that the LA sought only to present the facts to the court and to leave it to me to adjudge whether the particular regime and its inherent restrictions constitutes a deprivation of liberty. In the event that I do so find, the LA seeks authorisation of the deprivation as being necessary and proportionate.[4]Perhaps unsurprisingly, M and F expressed no view to CG in relation to whether HC’s placement represented a deprivation of his liberty, properly so described. Rather more importantly, both were reported to agree with HC remaining at the unit and with the current arrangements for his care.[5]On behalf of HC, CG asserted that HC’s accommodation at the unit and the regime of restrictions imposed upon him did indeed cross the threshold of Article 5 of the European Convention on Human Rights (“ECHR”). CG agrees with the LA that, in such event, the deprivation should be authorised as being ‘necessary and proportionate in order to ensure [HC]’s ongoing safety and to promote his continuing development’. Background[6]I need not set out in any detail HC’s early years.[7]HC was removed from his parents’ care in July 2016. After a period of assessment in another residential unit, he was first accommodated at the unit in December 2016, aged 11. He has remained living there at all times since then. Initially, his accommodation at the unit was underpinned by his parents’ consent and the corresponding duty of the LA pursuant to s.20 of the Children Act 1989 (“the CA 1989”). However, in early 2017, both HC and his brother, B, were the subject of care proceedings brought by the LA under Part 4 of the CA 1989. In February 2017, HC was made the subject of an interim care order. The proceedings concluded on 12th July 2017, when Mr Justice Hedley made a final care order in relation to HC, at the same time finding that HC’s accommodation at the unit constituted a deprivation of his liberty for the purposes of Article 5 ECHR. I have not been supplied with a transcript of the judgment of Hedley J, despite my having asked for this at a directions hearing a few weeks ago, and so I know no more of the learned judge’s reasoning than that it is recorded in the recitals to the order of 12th July 2017 that: Article 5 was also considered. Deprivation of liberty was determined on the basis that the internal doors at the placement were locked and [HC] has no access to the fob required to open them.[8]Significant to the current application is the fact that HC has long been diagnosed with autism, attention deficit hyperactivity disorder (“ADHD”), dyspraxia and attachment disorder. He takes a range of medication to manage his mood and his behaviour and to support his sleeping and bladder problems. He has exhibited a range of behavioural difficulties over a number of years. He is described by staff who know him as being very active, capable of being charming, and generally well-mannered, polite and smiley. On various occasions, however, when his behaviour has been challenging and disruptive, he has damaged property and has placed himself and others at risk. Over recent months there has been a reported improvement in episodes of acute mental health difficulties, self-harming, attention-seeking behaviour and damage to property. HC responds well to clear and consistent routines and boundaries and, while he struggles to cope if these routines change unexpectedly, this has been less of a problem over the last few months.[9]Informative, although by no means anywhere near determinative, is the fact that none of the other young persons resident at the unit has currently been deemed to be deprived of his or her liberty and so the subject of the declaratory authorisation regime which is underway for HC. A number of those young persons are older than HC. All will be subjected to at least some of the safeguards and restrictions which define HC’s life, although, rightly, I know nothing more of the detail of the lives, characteristics or particular arrangements for any of the other residents. HC’s day-to-day regime[10]HC attends a local school for children with complex needs. He is progressing well and meeting his current targets. He is gradually building and sustaining positive friendships with staff and peers. Staff consider that he has flourished, has enjoyed his time at school, and is making advances both in emotional maturity and literacy.[11]SW, in her statement in support of the application, set out a number of ‘identified restrictions’ imposed on HC at the placement. From this, and the statement I directed be filed by the residential manager of the unit, RM, I extrapolate and collate the following key features:a. Restricted freedom of movement: The external doors of the unit are locked in order to prevent the young persons who live there from leaving unnoticed. Exit is possible only by use of key-fobs in the possession of staff members. RM indicated that there is nothing to stop HC from asking to leave the unit at any time, whether to access the garden or the community more widely, but that any such trip would take place under staff supervision. His ability to go out into the garden for a kickabout is said to be ‘unlimited’. HC is allowed only restricted access to the kitchen, due to his limited understanding of the risks associated with hot water, hobs and ovens, knives and other sharp implements etc. HC’s bedroom door is locked at night-time, but this is from the outside only (i.e. preventing others from entering) and does not prevent him from leaving the room freely.b. Supervision, support and control: Due to HC’s various vulnerabilities and unpredictable behaviour, he requires constant supervision when out in the community. A further purpose of this supervision is to protect him from what is assessed to be a particular vulnerability to strangers who might pose a risk to him which he would not comprehend or predict. When in the unit, he is, as described in SW’s first statement, ‘under constant supervision and control at all times to ensure his safety and wellbeing’. This takes the form of the presence of a familiar member of staff, who also assists HC with his personal care. RM described HC as receiving 1:1 staffing, which is ‘eyes on’, in the sense that during waking hours, and apart from various personal care activities, he must be within sight of a staff member. This does not prevent his participation in such activities as football or board or computer games with peers.c. Imposition of routine: The unit houses 8 young persons. Meal times are standardised for all. Certain other routines are in place. During the week in term-time, HC attends school. He has a set bedtime. HC has contact with his parents and brother for four hours every weekend. During such times, his parents ensure his welfare and safety, so no staff presence is required.d. Restricted access to social media and the internet: HC’s use of the internet and communication by social media is ‘closely monitored, so that it is being used appropriately and in accordance with the law’.e. Restricted access to money: HC is described as having a ‘limited concept of his financial situation or in regards to money’. Accordingly, his allowance is ‘managed and controlled by staff’, who provide support to HC in making sensible choices as to the purchase of items such as clothing and toiletries.f. Physical restraint: On the relatively few occasions on which HC’s behaviour has become unregulated such that he has posed a risk to himself or to others, staff have resorted to physical restraint. Staff are trained in ‘Team Teach’ intervention methods, which are explicitly designed to de-escalate difficult situations, but physical restraint, as a tool of last resort, is occasionally necessary. Most recently, there were three separate occasions in June 2018 on which restraint was necessary.g. Medical: HC is prescribed Abilify liquid, Sertraline and Promethazine, each of which he is required to take once daily; under adult supervision HC is able to administer these medicines himself, and is cooperative with the regime; indeed, he is said to enjoy taking it; there is no question of restraint or force being required to ensure compliance.[12]I asked CG to give evidence as I thought it important to know how HC was in fact affected by these various restrictions and the extent to which he was treated significantly differently to any other (then) 12-year-old boy. CG had been the guardian for both HC and B in the 2017 care proceedings and had undertaken enquiries, including visiting the unit to see HC and speaking to various staff members, as part of his work in the current proceedings.[13]CG told me that HC seems happy and content living in the unit. He would rather be in foster care, and would rather spend more time with his family, but neither is currently possible. As to the degree of supervision and/or control, CG told me that the practical effect of the 1:1, ‘eyes-on’ staffing is that HC’s adult carer is almost constantly in the same room (or open space) as HC. Turning this observation around, it means that HC is virtually never on his own either alone or with one or more other young persons without at least one adult being present and able to see and hear all that goes on.[14]CG told me that he would expect an ‘average’ 12- to 13-year-old (that is, a young person without any particular disability or vulnerability) to be becoming competent at using public transport and at least starting to venture in to the local town or shops on his own or with peers. So far as he was aware, however, whether or not HC is aware of his complex needs and so his need of supervision, particularly near roads and traffic, he has never asked to go out on his own.[15]Indeed, I have not read or heard any evidence to suggest that HC resents any part of the regime to which he is subjected or that there is any particular activity in which he would like to be able to partake but which is denied to him by virtue of the rules and restrictions inherent in his placement at the unit. The law

The right to liberty and security; actionable confinement

[16]Article 5 ECHR begins as follows: Right to liberty and security 1. Everyone has the right to liberty and security of person. […][17]In addition, Article 37 of the United Nations Convention on the Rights of the Child (“UNCRC”) provides: States Parties shall ensure that: […] (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.[18]In a case not dissimilar to that currently before me, Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47, Cobb J considered what exactly is meant in these two international instruments by the notion of ‘liberty’: [22] Neither Convention referred to above contains a definition of ‘liberty’. Nor is it easy to define. In P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19 (“Cheshire West”) it was described thus: “Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. Nor is it diminished by one’s lack of capacity.” (Lord Kerr [76]). In this definition, the Supreme Court drew from the well-known case of Guzzardi v Italy [1980] 3 EHRR 333 at 92-93 in which it was said that: “[…] in proclaiming the “right to liberty”, paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. […] the paragraph is not concerned with mere restrictions on liberty of movement […]. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends.” [23] As Miss Fenwick and Mr Wilkinson have rightly identified, determination of RD’s Article 5 rights in this context depends on the application of the three limbed test set out in the case of Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96 , para 71, and 74 (“Storck”), a case concerning a German national and her confinement to different psychiatric hospitals and her medical treatment. This case clarified that deprivation of liberty under Article 5 has three elements: i) The objective element of a person’s confinement to a certain limited place for a not negligible length of time; ii) A lack of valid subjective consent to the confinement in question; iii) Confinement imputable to the state.[19]Two of the three Storck criteria (those numbered (ii) and (iii) above) are not for present purposes in dispute.[20]As to ‘Storck (ii)’, both the LA and CG are of the view, with which, on the evidence I certainly agree, that HC does not have the capacity to provide a valid subjective consent to his confinement. This is so whether one applies the so called ‘Fraser competence test’ (as first expounded by Lord Fraser of Tullybelton in Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112, [1985] 3 WLR 830, [1985] 3 ALL ER 402) or a capacity test more in line with that set out in ss. 2 and 3 of the Mental Capacity Act 2005. It is now established law that in relation to a child in the care of a local authority, neither a parent nor the local authority which is the beneficiary of the care order can exercise the parental responsibility each holds in order to effect a valid consent on behalf of the child (see Keehan J in Re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160, [2016] 2 FLR 601 at paras 26-29).[21]In relation to ‘Storck (iii)’, the fact that HC’s accommodation at the unit is attributable to the care planning, instruction and commissioning of the LA (that is, an emanation of state), itself granted parental responsibility by a court (that is, another emanation of state), in accordance with the public children law provisions of Part 4 CA 1989 makes it incontrovertible that HC’s confinement is ‘attributable to the state’.[22]This leaves in contention only the single ‘Storck (i)’ criterion, viz. whether there is an objective element of HC’s confinement to a certain limited place for a not negligible length of time.[23]The notion of confinement, properly so defined, was considered in detail by the Supreme Court in Cheshire West. Baroness Hale DPSC concluded thus: [48] So is there an acid test for the deprivation of liberty in these cases? I entirely sympathise with the desire of Munby LJ to produce such a test and thus to avoid the minute examination of the living arrangements of each mentally incapacitated person for whom the state makes arrangements which might otherwise be required. Ms Richards is right to say that the Guzzardi test is repeated in all the cases, irrespective of context. If any of these cases went to Strasbourg, we could confidently predict that it would be repeated once more. But these cases are not about the distinction between a restriction on freedom of movement and the deprivation of liberty. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their “concrete situation” on which we need to focus? [49] The answer, as it seems to me, lies in those features which have consistently been regarded as “key” in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned “was under continuous supervision and control and was not free to leave”: para 91. I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only in so far as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany [2013] MHLR 13.[24]The so-called ‘acid test’, then, is whether a person:a. is under continuous supervision and control, andb. is not free to leave.[25]As to the meaning of the second limb of that test, it is now clear, since the Court of Appeal’s judgment in Re D (A Child) (Residence[26]In relation to both criteria, the question is somewhat complicated when the person in question is a child. In Re A-F (Children) (Care Proceedings: Deprivation of Liberty) [2018] EWHC 138 (Fam), [2018] 3 All ER 732, [2018] 2 FLR 319, Sir James Munby P concluded that a very young child in foster care is not deprived of his or her liberty within the meaning of Article 5 ECHR if simply subjected to the same sort of regime as any other young child not in foster care, notwithstanding that any conscientiously cared-for child of a young age will almost certainly be ‘under the complete supervision and control of those caring for her and not free to leave the place where she lives’.[27]Sir James went on to consider the question in relation to older children: [30]Now at this point in the analysis a difficult question arises which has not hitherto been addressed, at least directly. At what point in the child’s development, and by reference to what criteria, does one determine whether and when a state of affairs satisfying the ‘acid test’ in Cheshire West which has hitherto not involved a ‘confinement’ for the purposes of Storck component (a), and where Art 5 has accordingly not been engaged, becomes a ‘confinement’ for that purpose, therefore engaging Art 5 (unless, that is, a valid consent has been given by someone exercising parental responsibility)? This question raises a conceptual issue of some difficulty. And given what I have said in paras [12]–[13] above, it also has very significant practical implications. [31] In addressing this question there are three preliminary points to be borne in mind:(i) First, the realities of the modern world, driven in significant part because the school-leaving age is now 16 and by consequential changes in the employment patterns of young people, mean that the typical child who is not yet 16 years old is not economically active and lives – in reality has no choice but to live – at home. So, the typical child of 15 is, in the sense in which the expression is used in the case-law, not free to leave the place where they live. If the 15-year-old child runs away, wanting to live on their own, they will probably not get social housing and, if not taken into care, are likely to be returned home to live either with the parents or with other relatives.(ii) Secondly, and another reality of the modern world, children nowadays tend to live more regulated and controlled lives than children of the same age would have been used to a generation or two back. The ubiquity of the motor vehicle in modern Britain, accompanied by changes in social attitudes as to what is or is not ‘responsible parenting’, mean that the street is no longer as safe (or seen as being as safe) an environment as it once was. It is no longer as safe (or seen as being as safe) as it once was for children to play in the street, to be allowed to roam or even to go to and from school under their own steam.(iii) Thirdly, and as I have already explained (see para [16] above), many aspects of the normal exercise of parental responsibility that interfere with a child’s freedom of movement do not involve a deprivation of liberty engaging Art 5. [32] These matters, and in particular the first, bring into sharper focus that aspect of the ‘acid test’ encapsulated in the phrase ‘complete supervision and control’. Given, as I have said, that the typical 15-year-old is not free to leave, investigation of that aspect of the ‘acid test’ will not of itself answer the question whether a 15-year-old or younger child is ‘confined’ for the purposes of Storck component (a). In terms of forensic reality, the answer to that crucial question will be determined by whether the child is under ‘complete supervision and control’. So in cases such as these, that, and not freedom to leave, is likely to be the central issue. [33] Crucial in this context is Lord Kerr of Tonaghmore’s analysis in Surrey County Council v P and Others (Equality and Human Rights Commission and Others intervening); Cheshire West and Chester Council v P and Another (Same intervening) [2014] UKSC 19, [2014] AC 896, [2014] 2 WLR 642, [2014] COPLR 313 (at paras [77]–[79]):
‘[77] The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place. [78] All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty. [79] Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEG’s liberty was not restricted. It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.’
In other words, whether a state of affairs which satisfies the ‘acid test’ a amounts to a ‘confinement’ for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same ‘age’, ‘station’, ‘familial background’ and ‘relative maturity’ who is ‘free from disability’.[28]Sir James concluded his analysis of this question thus: [41] So much for the general principles. The question is raised as to whether it is possible to identify a minimum age below which a child is unlikely to be ‘confined’, and hence to be deprived of their liberty, given the expectation that a comparable child of the same age would also likely be under continuous supervision and control and not free to leave. [42] The local authority suggests that the minimum age is 10, given, it says, that a typical child under the age of 10 will likely be under the continuous supervision and control of parents and that 10 marks what it suggests is a key transitional stage in a typical child’s life. DD, the children’s guardian for C, D1, D2 and E, points to the difficulty involved in the exercise, having regard to the ‘markedly differing principles, values, and belief held in society in respect of children of this age [11]’ and that a ‘typical’ child may experience different levels of restriction on their freedom depending on whether they live in an urban or rural setting. [43] Inevitably, one has to proceed on a case-by-case basis, having regard to the actual circumstances of the child and comparing them with the notional circumstances of the typical child of (to use Lord Kerr of Tonaghmore’s phraseology) the same ‘age’, ‘station’, ‘familial background’ and ‘relative maturity’ who is ‘free from disability’. Recognising that this does scant justice to the very thoughtful submissions I have had, in particular from Ms Heaton and Ms Burnell, the best I can do, by way, I emphasise, of little more than ‘rule of thumb’, is to suggest that:(i) A child aged 10, even if under pretty constant supervision, is unlikely to be ‘confined’ for the purpose of Storck component (a).(ii) A child aged 11, if under constant supervision, may, in contrast be so ‘confined’, though the court should be astute to avoid coming too readily to such a conclusion.(iii) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion. That said, all must depend upon the circumstances of the particular case and upon the identification by the judge in the particular case of the attributes of the relevant comparator as described by Lord Kerr of Tonaghmore. [44] The question is also raised whether, in undertaking the comparison required by the ‘acid test’, the comparison should be made with a ‘typical’ child of the same age who is subject to a care order. The answer in my judgment is quite clearly, No. There is no support for any such proposition in any of the authorities and it is unsound as a matter of principle. Indeed, the proposition was rejected by Keehan J in Re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160, sub nom A Local Authority v D and Others [2016] 2 FLR 601, at para [38](3). I agree with Keehan J.[29]Although some of these notions are already set out or referred to above, it is useful to repeat from the judgment in Re RD (ante) the list compiled by Cobb J of various passages from Cheshire West which relate to the current task and the manner in which it is to be undertaken: i) “It does not matter whether the object is to protect, treat or care in some way for the person taken into confinement” ([28]); ii) “We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty” ([35]); […] iii) “What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities” ([46]); iv) “Thus, you compare the situation of the child or P with the ordinary lives which young people of their ages might live at home with their families. This seems both sensible and humane.” ([47]); v) “the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant” ([50]); vi) “the distinction between deprivation and restriction is a matter of “degree or intensity” ([62]: see Guzzardi above) […]. In the end, it is the constraints that matter” ([56]). vii) “The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them.” ([77]).[30]In Re A-F, Sir James described as ‘illuminating’ the judgment of Her Honour Judge Rowe QC in A London Borough v M, F and B (through his Children’s Guardian) [2017] EWFC B93 (unreported) 6 November 2017, which involved an 11-year old subjected to the following regime: [2] […] Supervision from a distance (he is not followed but staff are always aware where he is and what he doing); He is not left alone with the other child in the placement; He is always accompanied when out in the community; He is subject, from time to time, to the removal and/or limitation of access to a computer and Xbox; and Staff use numerous and specialist methods to deal with his behaviour, including physical restraint.[31]Her Honour Judge Rowe’s reasoning as to why she concluded that the child was deprived of his liberty (or ‘confined’) was as follows: [13] ... As the Guardian submits, plainly correctly, the restrictions in place include some that would be in place for any child of B’s age. Many 11 year olds would, for instance, be restricted in their use of electronic device and they would be accompanied in the community and on school journeys. At least some children of B’s age would, however, have some degree of independence in these activities for example travelling at least part of the way to school unaccompanied and being unsupervised in the community at least for short periods of time. In any event, and critically given the nature of the relief sought, there are further and significant restrictions on B to be considered by the court, features of which include:(a) That B is, effectively, on 24 hour watch. He is never left unsupervised with the other young person in placement;(b) B’s contact with his parents and siblings is restricted and supervised; and(c) B has had to be physically restrained on a significant number of occasions due to his physically challenging behaviour which has included assaults on staff. This has led to an increased staff presence to support staff during incidents, and means that B will now be supported by up to three members of staff. [14] Both the local authority and B’s Guardian submit that these restraints amount to a deprivation of liberty. I conclude that these steps go well beyond the conditions imposed on other young people of B’s age, and find that they do amount to a deprivation of B’s liberty.[32]While, of course, not somehow seeking to superimpose the set of facts from one unique case onto the superficially similar facts in another, the adoption of an analogous analytical process will help to lead me to the right conclusion in the current case.

Authorisation of a deprivation of liberty

[33]If I find HC’s current conditions to constitute a deprivation of his liberty, in order for the situation to be lawful, that deprivation must be authorised.[34]As to the substance of such a determination, the placement under consideration and the various restrictions concomitant with the child’s life there must be both necessary and proportionate. In order to be proportionate, the regime must be the least restrictive compatible with the child’s welfare.[35]For a description of the necessary process, I need look no further than the authoritative exposition set out by the President in Re A-F (ante): [50] Process. The key elements of an Art 5-compliant process can be summarised as follows:(i) If a substantive order (interim or final) is to be made authorising a deprivation of liberty, there must be an oral hearing in the Family Division (though this can be before a s 9 judge). A substantive order must not be made on paper, but directions can, in an appropriate case, be given on paper without an oral hearing.(ii) The child must be a party to the proceedings and have a guardian (if at all possible the children’s guardian who is acting or who acted for the child in the care proceedings) who will no doubt wish to see the child in placement unless there is a very good child welfare reason to the contrary or that has already taken place. The child, if of an age to express wishes and feelings, should be permitted to do so to the judge in person if that is what the child wants.(iii) A ‘bulk application’ (see the Re X cases) is not lawful, though in appropriate circumstances where there is significant evidential overlap there is no reason why a number of separate cases should not be heard together or in sequence on the same day before one judge.[36]I ought perhaps also to highlight this aspect of the President’s judgment in relation to the threshold to the making of an application for authorisation: An application to the court should be made a where the circumstances in which the child is, or will be, living constitute, at least arguably (taking a realistic rather than a fanciful view), a deprivation of liberty. Discussion and decision

Deprivation of liberty

[37]HC is just 13 years old.[38]As above, I am to compare his life and his freedom or otherwise, with that of a young person ‘of the same age and familial background’, and in particular with a teenager living at home with his family rather than in the public care system.[39]The overwhelming majority of 13-year olds will be subject to a number of restrictions. However, it is an age at which one would expect freedom in a number of areas to be increasing.[40]For current purposes, it is helpful to consider the notional life of a typical 13-year-old with particular reference to the various domains in relation to which HC’s life is or may be different, as set out at [11] (above):a. Restricted freedom of movement: Whether or not a typical 13-year-old is permitted, and so free, effectively at will to leave his home, will depend on a combination of his individual level of maturity, the idiosyncratic view his parents take in relation to balancing risk, safety and autonomy, and the characteristics of the neighbourhood in which he lives which render it more or less safe for a young person (urban or rural location, roads and traffic, crime rates etc.). I consider that while it would be unlikely that he would be able to come and go exactly as he pleases, he would almost certainly be at least on the cusp of being able to undertake such activities as walking to school, walking or catching public transport into a local town or city, perhaps for the purpose of shopping or meeting friends or making his own way to some other place where he and his friends choose to congregate.b. Supervision, support and control: Linked to the question of freedom of movement is the question of supervision. A typical 13-year-old will certainly be supervised or controlled in certain formal or dangerous settings. For example, at school, much of the time is supervised to a greater (e.g. in the classroom) or lesser (e.g. during break-time) extent, and a risky sport or activity will generally be conducted under close adult supervision. However, a typical 13-year old will also enjoy significant periods of time without any active supervision whatever. In particular, it is intrinsic to the lives of teenagers that they are able to spend ever-increasing periods of time speaking to and interacting with their friends and peers, and without this being subjected to adult scrutiny. Equally, it is very much a part of a teenager’s life that they are able to spend time alone, without the presence of an adult or any other person, whenever they like (and their routine allows).c. Imposition of routine: All 13-year-olds are subjected to a routine. This is likely to be dictated both by school arrangements and by the lives and commitments of those around them, usually their parents and siblings. Most meal times are likely to be set for them by others and they are likely to have a set bedtime, certainly on school nights (even if this is the subject of constant ‘negotiation’ and probably a certain degree of laxity). It is, however, unusual for there to be an inflexible routine and significant limitation imposed in relation to the time a young person spends with his immediate family.d. Restricted access to social media and the internet: Most 13-year-olds have access to social media and the internet. For many, this represents a very significant element of their burgeoning independence, sense of self and social life. Of course, for most, the use of social media is important because of and to the extent of that young person having both an immediate network of friends and possibly a secondary network of online acquaintances or ‘followers’ using any particular medium or platform. To a greater or lesser degree, most 13-year-olds will be subjected at least to parental attempts to monitor and to restrict their use of social media and the internet. Close and constant monitoring of all use would, in my view, be unusual.e. Restricted access to money: Most 13-year-olds have an unfettered ability to spend as they choose any small sums of money to which they have access. Most will have a more or less limited supply of larger sums, the dissipation of which is likely to be the subject of adult advice (and occasional veto), but probably not of complete management and control (as is described in HC’s case).f. Physical restraint: Most young persons are not physically restrained. However, it seems likely that physical restraint, whether from a parent or, say, a school staff-member, would be used if this was deemed necessary in order to protect either the young person or anyone endangered by the young person.g. Medical: Any 13-year-old who requires medication will be assisted, overseen or encouraged to comply with the regime to the degree that this is needed, given the particular young person’s characteristics. I can readily imagine both the organised 13-year-old who would assume full personal responsibility for taking medication exactly as prescribed without any adult assistance, supervision or reminding and the slightly more chaotic young person who would require rather more prompting.[41]The regime in place for HC is very carefully constructed, exactly to meet his particular characteristics, needs and vulnerabilities. It is a system of services and restrictions which is entirely focused on his best interests and certainly represents living conditions of ‘relative benevolence’ (Cheshire West). HC is almost wholly compliant with his living arrangements, and, although he would rather live in a foster placement, is happy at the unit. However, as set out above in my review of the relevant legal principles, none of the factors described in this paragraph can affect my analysis or militate against my potentially finding there to be a deprivation of liberty.[42]Turning, then, to the ultimate question of whether the regime and restrictions to which HC’s life is subject are of such a ‘degree or intensity’ to represent ‘complete supervision and control’, I have reached the conclusion that the answer must be in the affirmative.[43]While a number of the restrictions, particularly taken in isolation, are not starkly variant to those which might be in place for a comparable child, I am struck, in particular, by the following three facts:a. the entirety of HC’s interactions with peers will take place in circumstances where an adult member of his care team is charged with maintaining ‘eyes-on’ supervision, and with the corollary effect that the overwhelming majority of all of HC’s conversations with his friends are overheard by an adult;b. apart from limited and discrete periods to undertake personal care tasks, absolutely all of HC’s waking time is observed and supervised by an adult;c. HC is not able to spend any time at all in the community without close supervision.[44]Conversely, in my experience, the typical young teenager will, on an ever-increasing basis through adolescence into young adulthood, need and enjoy:a. time alone with friends and peers;b. significant periods of time left to his or her own devices without adult observation or supervision; andc. the freedom to choose to venture into and to explore his or her community.[45]It follows that it is in these areas that HC’s existence differs markedly from that of his ‘typical’ counterpart. It matters not that this is so by constraint of circumstance, nor that the restrictions are designed to protect him, indeed to allow him, to thrive, nor that he does not in any way rail against them. In my judgment, the degree and intensity of the restrictions, taken cumulatively (as this is how they are experienced by HC) are such that they constitute ‘complete supervision and control’.[46]Given that HC is not free to leave (the second limb of Storck (i)), that none of HC, his parents, or the LA can provide a valid consent (Storck (ii)) and that HC’s confinement is imputable to the actions of the state (Storck (iii)), it follows that his placement, in conjunction with its conditions, represents a deprivation of his liberty within the meaning of Article 5 ECHR, as judicially interpreted. My order, which will accompany the handing down of this judgment, will make a declaration accordingly.

Authorisation of deprivation of liberty

[47]As will be apparent from much of the above, it is clear that the restrictions imposed on HC are necessary in order to protect him from harm. I am completely satisfied from what I have read and heard both that this is so and that there is no less restrictive way in which the same outcome – HC’s safety being maintained and his welfare promoted – could be achieved.[48]While HC would be happier if he were accommodated in foster care, to which the LA’s primary care plan has long aspired, I am further satisfied that this is not currently possible and that his placement at the unit is in his best interests.[49]Accordingly, I authorise the deprivation of HC’s liberty at the unit as being both necessary and proportionate.[50]Applying the procedure set out by Sir James Munby P in Re A-F, I make it clear that:a. HC’s placement at the unit and the deprivation of liberty thereby involved are to be subjected to the LA’s usual review process for any child in care,b. there is to be a further judicial determination of HC’s confinement, by application to be issued no later than 12 months after the date on which the current application was issued, andc. the matter must be restored to the court without waiting for this annual review in the event that HC’s condition markedly changes or that it is proposed that he move to a different placement. End of judgment

Order

Deprivation of Liberty) [2017] EWCA Civ 1695, [2018] 2 FLR 13, at para [22], that Baroness Hale of Richmond DPSC was using the term ‘free to leave’ in the sense in which Munby J had described in JE v DE (By his Litigation Friend the Official Solicitor), Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, at para [115]: The fundamental issue in this case ... is whether DE was deprived of his liberty to leave the X home and whether DE has been and is deprived of his liberty to leave the Y home. And when I refer to leaving the X home and the Y home, I do not mean leaving for the purpose of some trip or outing approved by ... those managing the institution; I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses […]. This does not mean, at least to my mind, that freedom or otherwise occasionally to leave a placement, in accordance with one’s whim from time to time, and in order to return shortly thereafter is not irrelevant to the test of confinement, but that it bears, or might do, on the first limb (continuous supervision and control) rather than the second (freedom to leave).

Cited in 1 later judgment