Daedalus, Ariadne and the Minotaur: Where are we now?

Alex Laing of Coram Chambers re-visits the use of the inherent jurisdiction to deprive children of their liberty in the light of recent judgments.

Alex Laing, barrister, Coram Chambers

Alex Laing, barrister, Coram Chambers

I have previously written extensively on the use of the inherent jurisdiction to deprive children of their liberty, the relatively ill-understood cousin of secure accommodation orders made under section 25 of the Children Act 1989. For those articles, see:

Here, I examine where we have got to now with the law.

By way of introduction, it should be recalled that,

Section 25 of the CA 1989 provides for the making of secure accommodation orders to restrict a child's liberty in (approved) secure accommodation;
In circumstances in which the child does not fall within section 25 of the CA 1989 or the placement available is not (approved) secure accommodation, local authorities and courts turn to the inherent jurisdiction.

What is going on?
In the past couple of years, there has – anecdotally, at least – been a significant increase in the frequency with which the inherent jurisdiction has been used to deprive children of their liberty. That might be thought to cause jurisprudential angst: where Parliament has legislated to "lock up" children to protect their welfare, with strict criteria applied and solely in approved placements, is it right that a secondary "lock up" market has now grown, populated by non-approved placements and with different or less strict criteria?

The cause of the increased use of the inherent jurisdiction is simple to state and difficult to solve. First, from the decade up to 2015, the reduced demand for beds by the Youth Justice Board (YJB), as fewer children were remanded or sentenced to secure accommodation by the criminal courts, caused a number of local authorities to determine that they could no longer operate secure children's homes without the predictable revenue that the YJB block-booked beds provided, leading to a reduction in the availability of welfare beds.¹ Now, local authorities are largely dependent on the market to provide suitable placements, with that market said to be working ineffectively and demand outstripping supply.²

Second, and at the same time, there appears to be an awakening appreciation by local authorities and family law practitioners of the existence of lots (and lots!) of existing placements that trigger article 5 (1), ECHR (the right to liberty and security), but have not been approved by a court under the inherent jurisdiction. By way of a quick reminder: (1) a placement in which a looked after child finds herself that places significant restrictions on her liberty may well fall within article 5 (1) ECHR, (2) that placement need not be formal secure accommodation: it could be a residential or therapeutic placement, (3) the other children in that same placement may or (more likely) may not be subject to any depriving-of-liberty order, (4) a court may not sanction a depriving-of-liberty placement simply through the making of an interim care order or care order and (5) such a placement that has not been approved by the High Court is likely to be unlawful and the child sitting on a claim against her local authority under the Human Rights Act 1998.

The current law
The law moves on apace, in large part due to the judgments of Sir James Munby P in D (A Child) [2017] EWCA Civ 1695 and Re A-F (Children) [2018] EWHC 138 (Fam). As has the terminology.

Taking the terminology first, practitioners should be aware that,

A placement that subjects a child to continuous control and supervision and lack of freedom to leave is a placement that effects a "confinement" of a child;
A child is only "deprived of her liberty" if three components are satisfied, as set out below.

The central legal scheme is described in the Storck components, named after the eponymous case³ and incorporated into domestic law by the UKSC in Cheshire West.⁴ That is,

For a child to be deprived of her liberty in article 5 (1), ECHR terms, the three Storck components must be satisfied, namely,

o The objective component of confinement in a particular restricted place for a not negligible length of time ("confinement");
o The subjective component of lack of valid consent;
o The attribution of responsibility to the State.

"Confinement" in domestic law means "continuous control and supervision and lack of freedom to leave".⁵ Almost by definition, a child has a "lack of freedom to leave", so forensic focus will be on "continuous control and supervision". The restrictions on the subject child need to be compared to those imposed on a comparator child of the same age, station, familial background and maturity who is free from disability.⁶
It is permissible to deprive a child of her liberty only if an article 5 (1), ECHR exception is met. Here, the relevant exception will be article 5 (1) (d): namely, "for the purpose of educational supervision". It should be noted that "educational supervision" is to be interpreted widely and is not circumscribed to a traditional, scholastic environment.
The authorisation of that exception – the making of a permissive, depriving-of-liberty order that allows a local authority to deprive a child of her liberty – is effected by the High Court under its inherent jurisdiction.

In terms of fundamental procedure, the key points to note⁷ are:

An application to the court should be made where the circumstances in which the child is, or will be, living at least arguably constitute a deprivation of liberty.
The court order need not authorise each element of the circumstances constituting the "confinement". The order need simply authorise (1) the child's deprivation of liberty at placement X, as described (generally) in some document to which the order is cross-referenced and (2) where appropriate, and without being more specific, medication and the use of restraint.
A substantive order requires an oral hearing; directions can be made on paper. The subject child must be a party and have a guardian. The subject child, if she wishes, should be able to meet the judge in person. A 'bulk application' is not lawful – but if there is significant evidential overlap, then cases could be heard at the same time or sequentially.
Evidence must cover: (1) the restrictions on the child, (2) the child's circumstances, including the justification for her the restrictions, (3) why the placement is said to be necessary and proportionate, and (4) the views of the child, parents, IRO, minutes of the most recent LAC or other statutory review and reports on the child's health.
In Sir James Munby P's view (in contrast with Keehan J's view⁸), the child's "consent", if asserted, should be evidenced by a child and adolescent psychologist or psychiatrist.
A review by a judge is required every 12 months, albeit this might be dealt with on the papers. Any significant change in circumstances (including a proposed move of placement) must be brought back before a judge.
At the end of each substantive order, it is (generally speaking) preferable for the proceedings to come to an end and for the local authority to re-issue each year.

But – issues remain
Despite the commendable work of Sir James Munby P and those involved in the leading cases, it might be said that issues remain.

First, to what extent should the judge-made depriving-of-liberty law (i.e. the inherent jurisdiction) take its cue from the Parliament-approved statutory scheme under section 25 of the CA 1989? Most obviously, Parliament's scheme makes clear that the test is not best interests. Rather, it is the section 25 (1) criteria.⁹ In sharp contrast, the trend toward the incorporation of the section 25 (1) criteria into the judge-made scheme appears to have slowed. The inherent jurisdiction is one of best interests. To that we can add necessity and proportionality. But that is markedly different from the strict section 25 (1) criteria.

It means that we are left with a variable test: a test that is strict where the placement is formally approved and more relaxed where it is not.

That discord is illustrated by the reworking of a simple example. Placement A is next door to Placement B. They impose identical and unremitting restrictions on their residents: locked doors, bars on the windows, no phones or money. Placement A has been approved as secure accommodation; Placement B has not. Parliament has made strict rules about depriving children of their liberty in Placement A: it can only be done if the section 25 (1) criteria are met.

A teenager turns up at court. He does not want to be deprived of his liberty; he does not want locks or bars. He fights the case. He fights hard. He wins. The judge finds that the section 25 (1) criteria are not met. He cannot be placed in Placement A. "Phew…", he says.

"Ah, but what about Placement B?", someone interjects, "he can be placed there". And off he goes. Despite the statutory criteria not being met, the teenager is deprived of his liberty in identical terms, with that being permitted for the simple reason that Placement B is not approved as secure accommodation. Try explaining that to him as his iPhone is taken and the doors clang shut.

Second, what does the "subjective component of lack of consent" mean? In particular, to what extent must that endure? If it is said that consent need not endure – i.e. consent is simply understood as in other areas of law – then there is a risk that a child consents, a depriving-of-liberty order is not made, the consent is withdrawn, and everyone has to rush back to court. Equally, if the law is to be that a child's consent must endure – i.e. yesterday and today's consent is insufficient and it must subjectively be said to be likely to last until an unknown point in the future – that throws the law on consent out of kilter and strips autonomy from children. This tension is the subject of two recent judgments from Mostyn J.¹⁰ Permission to appeal both decisions has been granted to the subject child on the issue of consent. The appeals will be heard later this month.

So, difficult issues remain. Or, to return to the words of an earlier article, the Minotaur continues to roam.

Footnotes:

[1] Hart and La Valle, Local authority use of secure placements, Research report, December 2016, p. 11.
[2] Ibid., p. 9. As anyone who practises in this area will know, this is a significant and frequent issue.
[3] Storck v Germany (2005) 34 EHRR 6.
[4] Cheshire West [2014] UKSC 19 at para 37.
[5] Ibid. at para 63.
[6] Re A-F [2018] at para 33.
[7] As set out in Re A-F [2018] at paras 49 – 55.
[8] Re C (A Child) [2016] EWHC 3473 (Fam) at para 44.
[9] i.e. history of absconding, likelihood of future absconding and risk of significant harm or likelihood of injuring oneself or others.
[10] A Local Authority v T (No. 1) [2018] EWHC 576 (Fam) and A Local Authority v T (No.2) [2018] EWHC 816 (Fam). The author represented the subject child at first instance and represents her on appeal. The appeal is listed for 23 – 24 May 2018.

15/5/18

username
password