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Re A-F (Children) EWHC 138 Fam

Important decision by Munby P concerning care proceedings and Article 5 DOLs. Rule of thumb as to children aged 10, 11 and 12. Procedure set out in detail, including that reviews by a judge must take place at least once every 12 months.

Where a child is subject to a care order, the question of whether there is a deprivation of liberty ("DOL") will turn on whether there is a "confinement" as referred to in component (a) of Storck: the objective component of confinement in a particular restricted place for a not negligible length of time.

Where the placement of a child involves such a "confinement", but is not secure accommodation within the meaning of s.25 Children Act 1989, the judicial sanction can only be provided by the High Court in the exercise of the inherent jurisdiction, or in some circumstances if the child has reached the age of 16, by the Court of Protection.

The law is as Munby P and Irwin LJ stated obiter in Re D (A Child) [2017] EWCA Civ 1695: the situation of the young or very young does not involve a "confinement" for the purposes of component (a), meaning that such a child living with foster carers in their home is not deprived of his or her liberty.

As the typical 15 year old is not "free to leave", investigation of that part of the "acid test" will not of itself answer the question of whether they are confined for component (a). Whether the child is under "complete supervision and control", and not freedom to leave, is likely to be the central issue.

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 the same "age", "station", "familial background" and "relative maturity" who is "free from disability". Little more than "rule of thumb" suggests:

(a) A child aged 10, even if under pretty constant supervision, is unlikely to be "confined".

(b) 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.

(c) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion.

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. The comparison is not with a "typical" child of the same age who is subject to a care order.

As to matters of process and procedure:

(a) If a substantive order (interim or final) is to be made authorising a DOL, there must be an oral hearing in the Family Division (though this can be before a section 9 judge). A substantive order must not be made on paper, but directions can be given on paper.
(b) The child must be a party to the proceedings and have a guardian 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.
(c) A 'bulk application' 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.

(a) The nature of the regime in which it is proposed to place the child, identifying and describing those salient features which it is said do or may involve "confinement".
(b) The child's circumstances, identifying and describing those aspects of the child's situation which it is said require that the child be placed as proposed and be subjected to the proposed regime and, where possible, the future prognosis.
(c) Why it is said that the proposed placement and regime are necessary and proportionate in meeting the child's welfare needs and that no less restrictive regime will do.
(d) The views of the child, the parents and the IRO, the most recent care plan, the minutes of the most recent LAC or other statutory review and any recent reports in relation to the child's physical and/or mental health.

As to the interface with care proceedings:

Continuing review is crucial to the contnued lawfulness of any "confinement". There are required:

Summary by Victoria Flowers, barrister, Field Court Chambers
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Neutral Citation Number: [2018] EWHC 138 (Fam)
Case numbers omitted

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31 January 2018

Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
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Re A-F (Children)
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Mr Shaun Spencer (instructed by the local authority) for the local authority
Ms Frances Heaton QC and Ms Kate Burnell (instructed by Hibberts LLP, Paul Crowley & Co and Lewis Rogers) for the children's guardians

Hearing dates: 25-26 May, 2-3 August 2017
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Judgment Approved

This judgment was handed down in open court

Sir James Munby, President of the Family Division :

1. These are a number of test cases, listed before me in accordance with directions given by Peter Jackson J, as he then was, on 11 May 2017. They raise various substantive and procedural questions in relation to the interface between care proceedings brought in the Family Court pursuant to Part IV of the Children Act 1989 and the requirements of Article 5 of the Convention. Specifically, the circumstances in which Article 5 is engaged in relation to a child in the care of the local authority and, where Article 5 is engaged, what procedures are required to ensure that there is no breach of the requirements of Articles 5(2)-(4). Specifically, the questions are those set out in Annex 2 to his order. As the matter developed before me, however, the Annex was refined, it being agreed, not least in the light of Re X (Court of Protection Practice) [2015] EWCA Civ 599, [2016] 1 WLR 227, that I should confine my attention to the issues arising in the cases listed before me. 

2. The matter initially came before me at Chester in May 2017 and was adjourned, part heard, to a further hearing at Liverpool in August 2017. At the end of that hearing I reserved judgment.

3. I shall have to elaborate some of this in due course, but, as summarised in the Table attached to this judgment, the cases relate to seven children, A, B, C, D1, D2, E and F (D1 and D2 are twins) born on various dates between 2001 and 2006 (and therefore with ages ranging from 16 to 11). In respect of each of them a final care order was made, in each case in favour of the same local authority, the dates of these orders ranging between 2010 and 2013, except for one in 2017. Each child has difficulties, summarised in the Table under the heading 'Health'. Some are in foster care; others in specialist placements. All are subject to certain restrictions on their movement or liberty, summarised under the heading 'Restrictions'.

4. There are three children's guardians, SW being the guardian for A and B, DD the guardian for C, D1, D2 and E, and KN the guardian for F. Only KN acted as guardian in the care proceedings; indeed, it was because of questions which arose in the context of the care proceedings in relation to F that these test cases were listed. Perfectly properly, and most helpfully, the guardians, whilst never losing sight of the individual needs and circumstances of each child, have collaborated as far as possible, not least in instructing Ms Frances Heaton QC and Ms Kate Burnell to represent each of them. The local authority, which there is no need for me to identify, and which in the interests of the children I have decided not to name, was represented by Mr Shaun Spencer. I am very grateful to all of them, guardians and counsel alike, for their invaluable assistance in a matter which raises a number of important if teasing problems.

5. I should record that, when the time came for the guardians to give oral evidence, I proposed, and no-one disagreed, they should all give evidence together at the same time, rather than seriatim, in a process which has now come to be referred to as 'hot-tubbing'. Although most usual nowadays in the context of expert evidence – and children's guardians are, of course, experts, even if not in the narrow sense – hot-tubbing', at least in the family courts, is not confined to experts. An early reported example is Re MM (Medical Treatment) [2000] 1 FLR 224, 234G, a case in which I appeared as counsel before Black J, as she then was. A few years later I adopted the same technique in an unreported wardship case where I 'hot-tubbed' the ward's school headmaster and form-teacher.

6. At the time I reserved judgment in these cases, the judgment of the Court of Appeal on the appeal from the decision of Keehan J in Birmingham City Council v D [2016] EWCOP 8, [2016] PTSR 1129, which had been heard in February 2017, was awaited. In circumstances where all the children involved were protected by the interim orders I had made, it seemed to me sensible to defer giving judgment in these cases until the Court of Appeal had given judgment in the other case. That judgment was handed down on 31 October 2017: Re D (A Child) [2017] EWCA Civ 1695. I now hand down judgment in these cases.

7. Before proceeding any further, it is convenient to clear the ground by summarising what is not controversial.

8. The framework within which the issues arising in these cases fall to be considered is the analysis of Article 5 set out by the Strasbourg court in Storck v Germany (2005) 43 EHRR 96, paras 74, 89, repeated in Stanev v Bulgaria (2012) 55 EHRR 696, paras 117, 120, and helpfully summarised in the Supreme Court by Lady Hale DPSC 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 (Cheshire West), para 37:

"… what is the essential character of a deprivation of liberty? … three components can be derived from Storck …, confirmed in Stanev …, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state."

9. I refer, by way of shorthand, to these three components as Storck components (a), (b) and (c); sometimes they are referred to as Storck limbs (1), (2) and (3). To ensure clarity of exposition, I use the phrase "deprivation of liberty" to describe the state of affairs where all three components of Storck are satisfied, that is, where there is a deprivation of liberty within the meaning of Article 5(1) which therefore engages the State's obligations under Articles 5(2)-(4). In contrast, I use the word "confinement" to describe the state of affairs referred to in Storck component (a).

10. I take Storck components (a), (b) and (c) in turn, starting with Storck component (c). It is so obvious that where a child is subject to a care order (whether interim or final) there is involvement and "responsibility" by the State satisfying Storck component (c) – both the State in the form of the court and the State in the form of the local authority named in the care order – that the point requires neither elaboration nor citation of authority.

11. I turn to Storck component (b), starting with what the Court of Appeal said in Re D (A Child) [2017] EWCA Civ 1695, para 37:

"In accordance with [Nielsen v Denmark 11 EHRR 175], there are circumstances in which the consent by a "holder of parental authority" – in domestic terms, someone with parental responsibility – will provide a valid consent for the purposes of Storck component (b) to something which is a "confinement" for the purposes of Storck component (a). Those circumstances, although "extensive", are not "unlimited.""

The Court of Appeal went on to explain (para 85) that:

"The ambit or extent of parental responsibility, the extent of the "zone" of parental responsibility, in any particular case [is] to be ascertained by reference to general community standards in contemporary Britain, the standards of reasonable men and women in … 2017."

The Court of Appeal held (paras 121-146), reversing Keehan J on this point, that (see para 128), in the context with which I am here concerned, "parental responsibility" is, in principle, exercisable in relation to a 16- or 17-year old child who, for whatever reason, lacks 'Gillick capacity'."

12. I need not further explore this aspect of Storck component (b) for what is important for present purposes are two points:

i) First, where a child is subject to a care order (whether interim or final) neither the local authority nor a parent can exercise their parental responsibility in such a way as to provide a valid consent for the purposes of Storck component (b): see In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160, paras 26-29, 36, considered in Re D (A Child) [2017] EWCA Civ 1695, paras 48, 109-112.

ii) Secondly, a foster carer does not have parental responsibility enabling the carer to provide a valid consent for the purposes of Storck component (b): see Re D (A Child) [2017] EWCA Civ 1695, para 31.

13. Pausing there, it follows that, in relation to a child who is subject to a care order, the question of whether there is, in the sense in which I have defined the expressions, a "deprivation of liberty" within the meaning of Article 5(1) engaging the State's obligations under Articles 5(2)-(4), will turn on whether there is a "confinement" as referred to in Storck component (a). So the crux of the analysis for present purposes relates to Storck component (a).

14. Cheshire West formulates the "acid test" of whether Storck component (a) is satisfied as being (see the judgment of Lady Hale, paras 48-49, 54):

"whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives."

It will be seen that there are two aspects of the "acid test": "complete supervision and control" and not being "free to leave". As Lady Hale pointed out (para 49) these are two separate requirements:

"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."

In Re D (A Child) [2017] EWCA Civ 1695, para 22, the Court of Appeal held that Lady Hale was using "free to leave" in the sense I had described in JE v DE [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, 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 …"

15. In this connection, there are two important points to be noted.

16. The first is that there is a clear distinction between a "deprivation of liberty" within the meaning of Article 5 and a restriction on liberty of movement governed by Article 2 of Protocol No 4. In relation to this distinction, the decision of the Court of Appeal in In Re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] Fam 377 is illuminating. As we said in Re D (A Child) [2017] EWCA Civ 1695, para 95:

"In re K shows … that 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 article 5, even if they may involve a restriction on liberty of movement." 

The judgment of Judge LJ, as he then was, in In re K gave as examples of what were mere restrictions on liberty of movement, rather than a deprivation of liberty (paras 99-101),

"…the way in which parents restrict the movements of their children from time to time by, for example, putting young children into bed when they would rather be up, or "grounding" teenagers when they would prefer to be partying with their friends, or sending children to boarding schools, entrusting the schools with authority to restrict their movements … "grounding" a teenager, or ensuring that a group of teenagers at a boarding school are all back within school bounds by a certain time each evening …"

17. The second point, as the Strasbourg court said in HL v United Kingdom (2004) 40 EHRR 761, para 92, is that whether the relevant accommodation is "locked" or "lockable" is not determinative of whether there is, as we would now put it, a "confinement" as referred to in Storck component (a).

"The Court would therefore agree with the applicant that it is not determinative whether the ward was "locked" or "lockable" … In this regard, it notes that the applicant in [Ashingdane v United Kingdom (1985) 7 EHRR 528] was considered to have been "detained" for the purposes of Article 5(1)(e) even during a period when he was in an open ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital.'"

This is an important point of principle which, as it seems to me, cuts both ways.

18. As I said in JE v DE [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, para 118:

"A person can be 'deprived of his liberty', indeed detained in the fullest and most complete sense of the word, even though his departure from the place of detention is not prevented by a locked door or by any other physical barrier. After all, a Category A prisoner detained in a maximum-security closed prison and a Category C prisoner detained in an open prison are both equally 'deprived of their liberty', even though there is nothing more keeping the Category C prisoner in than a rule that he must not pass beyond a line drawn on a plan, a notice attached to a tree warning him that he must go no further and the threat of recapture if he leaves without permission. So the fact that there is no perimeter security at the Y home, and the fact that DE can walk out at any time merely by operating a key-pad (assuming he is able to do so) is not determinative of the question whether he is nonetheless being 'deprived of his liberty'."

19. On the other hand, as I observed in Re S (Habeas Corpus), S v Haringey London Borough Council [2003] EWHC 2734 (Admin), [2004] 1 FLR 590, para 28:

"The children in the present case are … living with foster parents in exactly the same type of domestic setting as any other children of their ages would be, whether living at home with their parents or staying with friends or relatives. Habeas corpus does not lie because a parent, or other person in loco parentis, makes it a rule that a child of tender years is not to leave the house unless accompanied by some suitable person or because an exasperated parent has sent a naughty child to his room and told him to stay there for 2 hours or because a rebellious teenager has been "grounded" or subjected to a parentally enforced curfew, any more than habeas corpus lies if the headmaster of a boarding school forbids his charges to leave the school premises except at permitted times and for permitted purposes. And it makes no difference for this purpose that the domestic rule is actually enforced by the turning of a key in a lock."

That, of course, was said in the context of the common law and the tort of false imprisonment. But it seems to me that it has equal application in the context of Article 5.

20. All of these judgments pre-dated the decision of the Supreme Court in Cheshire West, but there is, as I read it, nothing in what the Supreme Court said which is in any way inconsistent with any of them.

21. As I pointed out in Re D (A Child) [2017] EWCA Civ 1695, para 30, a typical child say eight years old (the precise age being immaterial), subject to no physical or mental disabilities, who is, broadly speaking, at the same developmental stage as most children of the same age, and who is living with parents at home, without any local authority involvement, in the kind of circumstances in which, broadly speaking, most children of that age are accustomed to live in contemporary Britain, is "living in circumstances which plainly satisfy the Cheshire West "acid test"", being "under the complete supervision and control of those caring for her and … not free to leave the place where she lives." I went on:

"But common-sense would plainly indicate that such a child is not, within the meaning of Article 5, deprived of his or her liberty. But – and this is the key question – why not? Is it because (Storck component (a)) there is, nonetheless, no confinement? Is it because (Storck component (b)) there is, in accordance with Nielsen, an effective parental consent? …"

I then (para 31) postulated the situation where the same child was living with a local authority approved foster carer:

"… the child is living in circumstances which plainly satisfy the Cheshire West "acid test". The State (Storck component (c)) is plainly involved. There is (Storck component (b)) no question of a Nielsen consent, because the child's parents have not consented and, as a matter of domestic law …, the foster carers lack the authority to consent. Does it follow that the child is therefore within the meaning of Article 5 deprived of his or her liberty, and, if not, why not?"

22. Now this was not a question which arose for decision in Re D (A Child) [2017] EWCA Civ 1695. Nevertheless, both Irwin LJ and I considered the point, in particular by reference to what Lord Kerr had said in Cheshire West (paras 77-79): Re D (A Child) [2017] EWCA Civ 1695, paras 32-39, 158. David Richards LJ preferred (para 154) to express no view on the point.

23. What I said was this (para 39):

"Without deciding a point which is not before us, I am inclined to think that the effect of this is that, in Lord Kerr's view, the situation of the "young" or "very young" as he describes it does not involve a "confinement" for the purposes of Storck component (a), even though such a child is living in circumstances which plainly satisfy the Cheshire West "acid test." If this is so, though it is not something we need to decide for the purpose of disposing of this appeal and I express no concluded view, then the consequence, going back to my question, would be that the child living with foster-carers in their home is therefore not within the meaning of Article 5 being deprived of his or her liberty."

24. Irwin LJ, with whom I agreed (para 152) said this (para 158):

"Although it is not necessary for the decision in this case, I also agree with the President that the question whether there is "confinement" should be approached in the careful way analysed by Lord Kerr in Cheshire West, at paragraphs 77 to 79. A three year-old child must be restrained for her own safety if walking near a busy road, or playing near a bonfire. This restraint would be unlawful if exercised over an adult. But it is lawful if exercised by any adult looking after the child. In my view, there is no need for an elaborate analysis of delegated parental responsibility to explain this. In such circumstances, restraint to keep the child safe lawfully could (and normally should) be exercised by any nearby adult. The true analysis is that explained by Lord Kerr. For all present purposes, "confinement" means not simply "confining" a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. In most of the myriad instances in life where children are restrained in one way or another – by being compelled unwillingly to go to school, go to bed at a given time and so forth – there can be no question of their being "confined" so as to fulfil the first limb of the test in Storck."

25. I shall have to return in due course to this point, which is central to the issues arising in these cases.

26. A judge of the Family Court can make a secure accommodation order in accordance with section 25 of the Children Act 1989 (in Wales, in accordance with section 119 of the Social Services and Well-being (Wales) Act 2014). Where the placement of a child involves a "confinement" for the purpose of Storck component (a), but is not "secure accommodation" within the meaning of section 25 (section 119), the judicial sanction required if Article 5 is to be complied with can be provided only by the High Court, in the exercise of the inherent jurisdiction, or, in some circumstances if the child has reached the age of 16, by the Court of Protection.  1

27. In relation to the inherent jurisdiction, the following points are uncontroversial:

i) The inherent jurisdiction can be exercised only by the High Court (in practice by the Family Division) and not by the Family Court (though it can be exercised in an appropriate case by a section 9 judge sitting in the Family Division).

ii) As I said in In re X (A Child) (Jurisdiction: Secure Accommodation), In re Y (A Child) (Jurisdiction: Secure Accommodation) [2016] EWHC 2271 (Fam), [2017] Fam 80, para 32, quoting what I had earlier said in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, para 16:

"It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court … with respect to children … has power to direct that the child … in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit. It is equally clear that the court's powers extend to authorising that person's detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there."

iii) The exercise of the inherent jurisdiction in this way must not, but typically will not, offend the principle in Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508: see In re X (A Child) (Jurisdiction: Secure Accommodation), In re Y (A Child) (Jurisdiction: Secure Accommodation) [2016] EWHC 2271 (Fam), [2017] Fam 80, paras 37-45.

iv) The exercise of the inherent jurisdiction in this way must comply with the substantive and procedural requirements of Article 5: see Re C (Detention: Medical Treatment) [1997] 2 FLR 180, 197–198, Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, paras 20-26, Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, esp paras 15-16, 27-29, 32, 35, 39-40, Re BJ (IncapacitatedAdult) [2009] EWHC 3310 (Fam), [2010] 1 FLR 1373, paras 2-5, 24, 26, and In re X (A Child) (Jurisdiction: Secure Accommodation), In re Y (A Child) (Jurisdiction: Secure Accommodation) [2016] EWHC 2271 (Fam), [2017] Fam 80, paras 48-49. I shall return to some of the implications of this below.

28. I return to the issue in relation to Storck component (a).

29. The important issue which Irwin LJ and I dealt with only obiter in Re D (A Child) [2017] EWCA Civ 1695, because it did not arise for decision there, does arise for decision in the present cases. I therefore need to decide it. I can do so very shortly. Despite the reservations expressed by David Richards LJ, the law is, in my judgment, as Irwin LJ and I expressed it in the passages from our judgments in Re D (A Child) [2017] EWCA Civ 1695 which I have set out above.

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 Article 5 has accordingly not been engaged, becomes a "confinement" for that purpose, therefore engaging Article 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 paragraphs 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 sixteen and by consequential changes in the employment patterns of young people, mean that the typical child who is not yet sixteen years old is not economically active and lives – in reality has no choice but to live – at home. So, the typical child of fifteen 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 fifteen-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 paragraph 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 Article 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 fifteen-year old is not free to leave, investigation of that aspect of the "acid test" will not of itself answer the question whether a fifteen-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's analysis in Cheshire West (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" 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".

34. At this point, and because they are quite close in point of fact to the cases before me, it is worth considering how the Supreme Court analysed the two cases of MIG and MEG to which Lord Kerr referred.

35. When their cases came before Parker J in 2010, MIG was 18 and her sister MEG was 17. Neither lived in the family home. MIG lived with a foster carer, MEG in a small residential home. Parker J held that neither was being deprived of their liberty: Re MIG and MEG [2010] EWHC 785 (Fam), sub nom Surrey County Council v CA [2011] MHLR 108. Her judgment contains descriptions of MIG's circumstances (paras 209-211) and MEG's circumstances (paras 215-218) which for convenience I set out in the Schedule to this judgment. An appeal against Parker J's decision was dismissed by the Court of Appeal: Surrey County Council v P and others (Equality and Human Rights Commission intervening) [2011] EWCA Civ 190, [2012] Fam 170. By a bare majority (Lord Neuberger PSC, Lady Hale DPSC, Lord Kerr and Lord Sumption, Lords Clarke, Carnwath and Hodge dissenting on this point) the Supreme Court in Cheshire West reversed the Court of Appeal.

36. I start with what Lady Hale said (paras 52-54):

"52  … [MEG] did sometimes require physical restraint and she received medication to control her anxiety. Above all, the staff did exercise control over every aspect of her life. She would not be allowed out without supervision, or to see people whom they did not wish her to see, or to do things which they did not wish her to do.

53  MIG's case was different in one important respect. She was living in an ordinary family home, and also going out to attend an educational unit, and enjoying good family contact … The reality is that MIG's situation is otherwise the same as her sister's, in that her foster mother and others responsible for her care exercised complete control over every aspect of her life. She too would not be allowed out without supervision, or to see anyone whom they did not wish her to see, or to do things which they did not wish her to do.

54  If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions."

Lord Sumption agreed with Lady Hale. I have already set out the relevant paragraphs from Lord Kerr's judgment. Lord Neuberger agreed with Baroness Hale in a separate judgment which, on this point, added nothing to her analysis.

37. Since Cheshire West there have been quite a few cases in which judges have had to grapple with the question of whether a child is being "confined" for the purpose of Storck component (a). Although, at the end of the day, little if anything turns for present purposes on the distinction, it may be useful to note that while some of these cases involve what one might call a simple Cheshire West situation,2  others arise in a context where the inherent jurisdiction is having to be pressed into service in what ought to be an application for a secure accommodation order but where secure accommodation in the statutory sense (section 25 of the Children Act 1989; in Wales, section 119 of the Social Services and Well-being (Wales) Act 2014) is not available.  3

38. No purpose would be served by a comparative analysis of all these decisions, for cases are to be decided by proper application of the relevant principles, not by a search for the case which is 'closest on the facts.' I should, however, make one exception, the illuminating judgment of Her Honour Judge Rowe QC in Re B [2017] EWFC B93, a case where an eleven-year old boy with autistic spectrum disorder was accommodated in a residential unit and assessment centre where he was subject to significant restrictions on his liberty (para 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 specialist methods to deal with his behaviour, including physical restraint."

39. Explaining why, in her judgment, B was, to use my terminology, "confined", Judge Rowe said (paras 13-14):

"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."

Judge Rowe's analysis of the typical life of an eleven-year old is, if I may respectfully say so, insightful and compelling.

40. Most of the other cases involve children aged 14 or over. I draw attention to the two other Cheshire West type cases involving younger children: Re D (deprivation of liberty declaration) [2016] EWFC B31, where the child was 10, and Re T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) [2018] EWFC B1, where the child was 13.

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 [eleven]" 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'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.

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, para 38(3). I agree with Keehan J.

45. I turn to matters of process and procedure.

46. I have referred already (paragraph 27(iv) above) to the relevant authorities; see also the Re X cases (In re X and others (Court of Protection: Deprivation of Liberty) (Nos 1 and 2) Practice Note [2014] EWCOP 25, [2014] EWCOP 37, [2015] 1 WLR 2454, [2014] COPLR 674, on appeal In re X and others (Court of Protection: Deprivation of Liberty) (Nos 1 and 2) [2015] EWCA Civ 599, [2016] 1 WLR 227, [2015] COPLR 582). There is no need for me to embark upon either elaborate citation or exegesis, for on most points there was little difference at the Bar and the answers are in any event reasonably clear.

47. General A "confinement" of the kind I am here concerned with will be lawful if, as a matter of substance it is both necessary and proportionate, ie, the least restrictive regime which is compatible with the child's welfare and, as a matter of process, has been authorised by a judge in the Family Division in accordance with the procedures identified in the authorities I have referred to in paragraph 46 above.

48. Need to apply to the court An application to the court should be made 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.

49. What has to be approved There is no need for the court to make an order specifically authorising each element of the circumstances constituting the "confinement". It is sufficient if the order (i) authorises the child's deprivation of liberty at placement X, as described (generally) in some document to which the order is cross-referenced, and if appropriate (ii) authorises (without the need to be more specific) medication and the use of restraint.

50. Process The key elements of an Article 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 section 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.

51. Evidence The evidence in support of the substantive application (interim or final) should address the following matters and include:

i) The nature of the regime in which it is proposed to place the child, identifying and describing, in particular, those features which it is said do or may involve "confinement". Identification of the salient features will suffice; minute detail is not required.

ii) The child's circumstances, identifying and describing, in particular, those aspects of the child's situation which it is said require that the child be placed as proposed and be subjected to the proposed regime and, where possible, the future prognosis.

iii) Why it is said that the proposed placement and regime are necessary and proportionate in meeting the child's welfare needs and that no less restrictive regime will do.

iv) The views of the child, the child's parents and the Independent Reviewing Officer, the most recent care plan, the minutes of the most recent LAC or other statutory review and any recent reports in relation to the child's physical and/or mental health (typically the most recent documents will suffice). 

52. Whether and to what extent new evidence (eg, up-to-date reports) will need to be obtained, or whether reliance on existing evidence will suffice, must depend upon (a) the extent to which the existing evidence covers the various matters referred to above, (b) the age of the existing evidence (how up-to-date is it?) and (c) the extent to which there have been any significant changes since the existing evidence was prepared. The evidence from the guardian, which I envisage can often be quite short, will typically focus on the "confinement" and "deprivation of liberty" issues; unless there has been a very significant change in the child's circumstances, the application under the inherent jurisdiction should not be an occasion for re-opening the wider welfare issues previously determined in the care proceedings.

53. The question has been raised whether a child's competency to consent to a "confinement" can properly and fairly be assessed by a local authority social worker. Whilst I would not wish to exclude evidence on the point from a social worker who feels properly qualified to express an opinion, it is plainly undesirable that the only evidence on the point should come from an employee of the local authority responsible for the "confinement". And one would, in any event, expect that if a child whose circumstances require a regime more restricted than that of a comparator contemporary is nonetheless said to have the capacity to give a valid consent, that proposition would normally be made good by evidence from either a child and adolescent psychologist or, depending upon the nature of the child's difficulties, a child and adolescent psychiatrist. I recognise that in putting it this way I am departing somewhat from what Keehan J said in A Local Authority v D, E and C [2016] EWHC 3473 (Fam), para 44.

54. Interface with care proceedings

i) If, when care proceedings are issued, there is a real likelihood that authorisation for a deprivation of liberty may be required, the proceedings should be issued in the usual way in the Family Court (not the High Court) but be allocated, if at all possible, to a Circuit Judge who is also a section 9 judge. Ms Heaton and Ms Burnell suggest that thought should be given to amending the C110A form to enable the issue to be highlighted. I agree.

ii) Where care proceedings have been allocated for case management and/or final hearing to a judge who is not a section 9 judge, but it has become apparent that there is a real likelihood that authorisation for a deprivation of liberty may be required, steps should be taken if at all possible, and without delaying the hearing of the care proceedings, to reallocate the care proceedings, or at least the final hearing of the care proceedings, to a Circuit Judge who is also a section 9 judge.

iii) The care proceedings will remain in the Family Court and must not be transferred to the High Court (note that a District Judge or Circuit Judge has no power to transfer a care case to the High Court: see FPR 29.17(3) and (4) and PD29C). The section 9 Circuit Judge conducting the two sets of proceedings – the care proceedings in the Family Court and the inherent jurisdiction proceedings in the High Court – can do so sitting simultaneously in both courts.

iv) If this is not possible, steps should be taken to arrange a separate hearing in front of a section 9 judge as soon as possible (if at all possible within days at most) after the final hearing of the care proceedings. Typically, there will be no need for the judge to revisit matters already determined by the care judge, unless there are grounds for thinking that circumstances have changed; indeed, the care judge should, wherever possible and appropriate, address as many of these issues as possible in the care proceedings judgment.

v) The evidence should include, in addition to all the other evidence required in the care proceedings, evidence on the matters referred to in paragraph 51 above. These matters should also, mutatis mutandis, be included in the section 31A care plan put before the court in the care proceedings.

vi) Where the care proceedings have been concluded for some time, the process will be that indicated in paragraphs 50-51 above.     

55. Review Continuing review is crucial to the continued lawfulness of any "confinement". What is required are:

i) Regular reviews by the local authority as part of its normal processes in respect of any child in care.

ii) A review by a judge at least once every 12 months. The matter must be brought back before the judge without waiting for the next 12-monthly review if there has been any significant change (whether deterioration or improvement) in the child's condition or if it is proposed to move the child to a different placement.

iii) The child must be a party to the review and have a guardian (if at all possible the guardian who has previously acted for the child).

iv) If there has been no significant change of circumstances since the previous hearing / review, the review can take place on the papers, though the judge can of course direct an oral hearing. The form of the next review is a matter on which the judge can give appropriate directions at the conclusion of the previous hearing.

56. The question has been raised whether, upon the making of a final order, the proceedings should be concluded, leaving the review to be conducted on the making of a fresh application by the local authority before the expiry of the previous order (and so on for each subsequent review); or whether the proceedings should be adjourned to a date fixed for hearing the next review (and so on thereafter). The argument against the former is that the local authority will have to pay a court issue fee for each review; the argument against the latter is that if the proceedings continue indefinitely this will cause CAFCASS significant administrative problems and the legally-aided lawyers significant problems in relation to open, rather than concluded, legal aid certificates. The consensus arrived at by the parties, with which I agree, is that, generally speaking, it is preferable for the proceedings to be concluded at the end of the final hearing and thereafter at the end of each review, rather than being kept open. The local authority's stance was that, although there would be a cost implication for it in having to issue a fresh application for each review, the overall costs thus incurred were not significant and could properly be borne by the local authority.

57. In accordance with the directions included in the order I made on 3 August 2017, the matter will be listed for a further hearing (time estimate 1 day) at either Chester or Liverpool as best suits the parties' convenience. At that hearing I will review any significant developments there may have been since the previous hearing and make final orders. I will also consider whether, in the light of the principles as I have set them out, there would be any value in formulating, with the assistance of counsel, standard forms of order (in particular, directions orders) for use in cases such as this. Counsel have already, at my invitation, very helpfully produced various drafts, which will inevitably require adjustment in the light of this judgment. 


THE SCHEDULE: extracts from the judgment of Parker J

Re MIG
"209 MIG is living in an ordinary domestic environment which she regards as home. She is not restrained in any way. She is not locked in in any way, (although she does refuse to keep her bedroom door open, causing some concern to her foster parents). She does not wish to leave. She wants to stay with JW. She loves JW and regards JW as her "Mummy".

210 Continuous supervision and control is exercised so as to meet her care needs. Limitations on movement are generally dictated by limitations in MIG's ability, or her lack of awareness of danger. She has never sought to leave the home. If she were to try to leave she would be restrained for her own immediate safety. MIG has no sense of safety and in particular no awareness of road safety. She needs to be guided and accompanied. She needs guidance in crossing roads. This is because of her disability. Such restraints do not amount in my judgment to deprivation of liberty. She is not medicated.

211 There are no restrictions on her social contacts save by way of court declaration. She has as many social contacts within and outside the home as she is able in accordance with her own capacity to interact with others. She goes to college. She is transported to and from college. Whilst there she is not under the control of JW or the [local authority]."

Re MEG

"215 B Home is a small group home where MEG is one of four residents. She has one to one and sometimes two to one support. Her behaviour is stabilising with behavioural management techniques. MEG presents challenging behaviour in which she has outbursts. Those outbursts are principally directed at other residents and young persons whom she perceives as less able than herself. She has to be restrained from time to time when she has an outburst. She is not otherwise restrained. Continuous supervision and control is exercised so as to meet her care needs. She is not in a locked environment.

216 MEG receives medication 'Risperidone' for the purpose of controlling her anxiety, which is a pervasive feature of her emotional state. I have re-read my note carefully. No oral evidence was given about this medication and it's uses at the hearing. Miss Morris has since pointed out to me that Mr O'Meara reported that the staff at B Home told him that MEG receives medication to "stabilise her mood and calm her". She also drew my attention to Dr Xenitidis' report where he records that LG told him that the gradual but significant improvement in MEG's behaviour was caused in his view by the "implementation of strategies in place both reactive and in terms of rewarding positive behaviour as well as identifying early warning signs of her behaviour. It is possible that tranquilising medication prescribed for her 'Risperidone 1mg at night' may have helped as well." In addition he felt that the fact that MEG has a structured day programme has "helped a lot". The effect of the medication on MEG was not explored in any way in the hearing before me and Dr Xenitidis in particular was not asked about it in the letter of instruction or in evidence. Miss Morris tells me that the Official Solicitor takes the view that the fact that MEG is medicated means that the arrangements go beyond "ordinary restrictions" in a children's home for adolescents when taken together with the restraints which have to be exercised temporarily and from time to time when she has a tantrum.

217 In my judgment the fact of administration of medication in itself cannot create deprivation of liberty. On the material before me I do not conclude that medication plays a part in restraining MEG so as to create a deprivation of her liberty. She was not medicated in order to secure her admission and is not medicated to prevent her from leaving. My reading of the evidence was that she would require this medication in any setting. There were no specific references to measures of restraint in the evidence save that in the final care plan it was stated that MEG had sometimes to be guided away from an activity which could trigger unpredictable behaviour using "MAYBO" (physical intervention programme) techniques in a way which did not involve physical restraint, although I understood from the descriptions of seriously aggressive incidents (now rare) that there might have had to be appropriate physical intervention. This physical restraint in my judgment does not amount to a deprivation of liberty.


218 MEG is incapable of independent living. She is largely dependent on others. She needs to be looked after save for basic care needs. She lacks capacity to make decisions as to her care, education, social and family contacts and health care. She cannot go out on her own. She shows no wish to go out on her own. She can communicate her wants and wishes in a limited manner. There are no restrictions on her social contacts save by way of court declaration. She goes to college. She is transported to and from college. Whilst there she is not under the control of JW or the Applicant and there are no restraints on her social contacts. She has a lively social life both in the home and at college and outside the home accompanied by staff and other residents."

1 See sections 2(5), 17, 21 of the Mental Capacity Act 2005 and the Mental Capacity Act 2005 (Transfer of Proceedings) Order 2007, SI 2007/1899.

2
See, for example (age of child at date of hearing in parenthesis), Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam), [2016] 1 FLR 142 {15}; In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160, [2016] 2 FLR 601 {14}; Birmingham City Council v D [2016] EWCOP 8, [2016] PTSR 1129 {16} (on appeal Re D (A Child) [2017] EWCA Civ 1695; Re D (deprivation of liberty declaration) [2016] EWFC B31 {10}; A Local Authority v D, E and C [2016] EWHC 3473 (Fam) {15}; and Re T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) [2018] EWFC B1 {13}.

3
See, for example (age of child at date of hearing in parenthesis), In re X (A Child) (Jurisdiction: Secure Accommodation), In re Y (A Child) (Jurisdiction: Secure Accommodation) [2016] EWHC 2271 (Fam), [2017] Fam 80; Re X (A Child) (No 3) [2017] EWHC 2036 (Fam) {16}; Re F (A Minor: Secure Accommodation Resources) [2017] EWHC 2189 (Fam) {14}; Re M (Lack of Secure Accommodation) [2017] EWFC B61 {15}; Re A Child (No Approved Secure Accommodation Available; Deprivation of Liberty) [2017] EWHC 2458 (Fam) {13}; Re B [2017] EWFC B93 {11}; and Re M (A Child: secure accommodation order) [2017] EWHC 3021 (Fam) {15}.

 

 

dob

CO

CG

Health

Accommodation

Restrictions

A

2004

2013

SW

Autism, severe learning disability

Foster care

Locked environment at home

Supervised at all times home and community

1:1 support in school

B

2001

2010

SW

Global developmental delay

Foster care

Locked environment

Supervised at all times home, school and community

Transported to and from school

C

2005

2010

DD

Global developmental delay, complex emotional difficulties, range of physical impairments and disabilities

Foster care

Specialist residential school

Locked environment

Supervised at all times home, school and community

Transported to and from school

D1

2006

2011

DD

Moderate learning difficulties

Foster care

Supervised in certain areas of home

Supervised at all times in community

Supported in school

D2

2006

2011

DD

Moderate learning difficulties

Foster care

Supervised in certain areas of home

Supervised at all times in community

Supported in school

E

2003

2011

DD

Global developmental delay, emotional dysregulation

Single occupancy residential placement

Supervised by staff 2:1

Supervised at all times in community

 

F

2006

2017

KN

Autism, severe learning disability

Specialist educational residential placement

Locked environment in the home

Constant supervision in placement and community