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Question of Incompatibility - Deprivation of Children’s Liberty Without Court Order?

Helen Crowell, Pupil Barrister and Shaun Spencer, Barrister, of St Johns Buildings discuss Deprivation of Liberty and the Children’s Home Regulations 2015

Helen Crowell, Pupil Barrister and Shaun Spencer, Barrister, of St Johns Buildings

Introduction

All persons are guaranteed the right to liberty and security of the person, as enshrined in Article 5 of the European Convention of Human Rights. As such, when an issue arises with regard to a potential deprivation of liberty of a child (or indeed of any person), appropriate procedural safeguards must be in place to ensure the child's Article 5 as well as their Article 8 rights to private and family life are sufficiently protected. For some time, the courts have undertaken this process through the use of the inherent jurisdiction of the High Court to authorise and review any such deprivation of liberty in a way that renders the process compliant with Article 5.

This article focuses on the Children's Home (England) Regulations 2015 1 ('the Regulations') and the relevant 2015 statutory Guidance 2, which permit a registered children's home to put in place various restrictions with regard to children in their care. It may come as somewhat as a surprise to practitioners in this area to know that, whilst the Regulations do not permit a children's home of their own motion to put in place the entire panoply of restrictions which are often seen in a deprivation of liberty authorisation order (DOL), they do however allow some significant restrictions to be implemented such as the ability to restrain a child, to limit a child's privacy, and to limit the child's contact with others, ostensibly without recourse to any court order or independent review.

The authors consider, first, that the restrictions permitted within the Regulations are capable of amounting to a 'confinement' such as to satisfy limb (i) of Storck and to engage Article 5; second that, given the Regulations appear to permit a children's home to put these restrictions in place without court approval, one can settle upon readily identifiable circumstances in which use of the powers provided by the Regulations will likely amount to an unlawful breach of Article 5; and third, we venture to suggest, that the Guidance is, in certain respects, wrong in law and requires revisiting.


Do the Regulations permit a deprivation of liberty by a children's home?
Chapter 2 of the Regulations outline the restrictions which a children's home are permitted to put in place:

i) Restraint:
20.—
(1) Restraint in relation to a child is only permitted for the purpose of preventing—

(a) injury to any person (including the child);

(b) serious damage to the property of any person (including the child); or

(c) a child who is accommodated in a secure children's home from absconding from the home.

(2) Restraint in relation to a child must be necessary and proportionate.

(3) These Regulations do not prevent a child from being deprived of liberty where that deprivation is authorised in accordance with a court order.

ii) Privacy:
21
.  The registered person must ensure that—

...(c) any limitation placed on a child's privacy or access to any area of the home's premises—

(i) is intended to safeguard each child accommodated in the home;

(ii) is necessary and proportionate;

(iii) is kept under review and, if necessary, revised; and

(iv) allows children as much freedom as is possible when balanced against the need to protect them and keep them safe.

iii) Contact:
22
.—

(5) If the registered person considers it to be necessary for the purpose of safeguarding or promoting the welfare of a child, the registered person may impose conditions, prohibitions or restrictions upon a child's—

(a) contact with parents, friends or relatives; or

(b) access to communications under paragraph (3).

(6) No measure may be imposed by the registered person under paragraph  (5) unless—

(a) the child's placing authority consents to the imposition of the measure; or

(b) the measure is imposed in an emergency, and full details are given to the placing authority within 24 hours of its imposition.

iv) Monitoring and surveillance:
24
.— (1) The registered person may only use devices for the monitoring or surveillance of children if—

(a) the monitoring or surveillance is for the purpose of safeguarding and promoting the welfare of the child concerned, or other children;

(b) the child's placing authority consents in writing to the monitoring or surveillance;

(c) so far as reasonably practicable in the light of the child's age and understanding, the child is informed in advance of the intention to do the monitoring or surveillance; and

(d) the monitoring or surveillance is no more intrusive than necessary, having regard to the child's need for privacy.

Several features of the Regulations are therefore quite striking. First, that these are substantial restrictions that on their face may be capable of engaging Article 5 and undoubtedly engage Article 8. Although the Regulations do not explicitly permit all features that are often present in a DOL authorisation such as provision for constant staff supervision of a child or the locking of doors and windows - albeit, it is at least arguable that the Regulations are drafted sufficiently widely such as to permit these restrictions, for example the implementation of a 2:1 supervisory regime could be said to be a limitation on the privacy of the child and therefore permitted by Regulation 22.  Nevertheless, they do explicitly permit restrictions on contact with others and permission to use restraint on a child, which are features that often are present in such orders.

Second, there is no requirement for court approval; restrictions on contact under Reg. 22 as well as use of monitoring and surveillance devices in Reg. 24 must be consented to by the local authority, but need not be approved by the court. Those familiar with the authorities in relation to this area of law will immediately appreciate the difficulties which arise with the concept of the local authority, as an arm of the State, providing valid consent to a care arrangement such as to prevent a deprivation of liberty occurring.

Third, and significantly, there is no spectrum in the Regulations as regards the age of the child upon whom the measures are to be implemented. On their face, the Regulations permit equal restrictions to be put in place whether a child is six or sixteen. The implications of this will be considered below.

The 2015 Guidance that supplements the Regulations provides some further insight:

9.63 A deprivation of liberty may occur where a child is both under continuous supervision and control and is not free to leave the home. A children's home cannot routinely deprive a child of their liberty without a court order…
[our emphasis added]

It is well-established that the inherent jurisdiction of the High Court may only be used to fill a lacuna in existing statutory powers. If there are statutory materials which grant the same powers, the inherent jurisdiction should not be used. Regulation 20(3) appears to cater for this point in recognising that the Regulations do not prevent a child from being deprived of their liberty in accordance with a court order and thus seems to preserve the jurisdiction of the court in this area. However, a question arises as to whether the Regulations permit a degree of deprivation of liberty by a children's home without court approval whatsoever; the Guidance above at [9.63] is clear that a children's home cannot do so routinely, but this suggests that a non-routine deprivation would be permissible.

As such, it could be asked whether the Court need exercise the inherent jurisdiction at all to permit a deprivation of liberty, given the existence of the powers included in the Regulations. To determine whether this approach is correct, the caselaw in what amounts to a deprivation of liberty must be considered.

The case of Storck v Germany (2005) 43 EHRR 96 established a three-limb test to consider whether a person is deprived of their liberty, which was approved by the UKSC in P, Q & others v Cheshire West [2014] UKSC 19:

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;

c. The attribution of responsibility to the state.

For the purposes of this article it is (i) that is in issue, i.e. whether the powers under the Regulations amount to a 'confinement.' The Supreme Court was clear that the difference between restriction and deprivation of liberty is a matter of 'fact and degree' and focus must be upon the 'concrete situation' of the particular person, with no single 'touchstone' for what constitutes a deprivation of liberty. However, the 'acid test' of confinement in Cheshire West consists of the following questions:

a. Is the person subject to complete supervision and control?

b. Is the person free to leave?

In relation to children, crucial to this question is the age and maturity of the relevant child. In Cheshire West, Lord Kerr stated that '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]. This was confirmed by Sir James Munby P in Re A-F [2018] EWHC 138 where he considered that the restrictions on that particular child must be compared to the restrictions that would apply to a child of the same 'age', 'station', 'familial background', and 'relative maturity' who is 'free from disability.'

Given that the focus per Cheshire West is on the 'concrete situation' of the particular person, there are a variety of criteria that might be taken into account when considering whether an individual child is deprived of his or her liberty. The following (albeit non-exhaustive) list of factors were considered relevant by Mr Justice MacDonald in M (Deprivation of Liberty in Scotland) [2019] EWHC 1510:

'i) The extent to which the child is actively prevented from leaving the placement and the extent to which efforts are made to return the child if they leave;

ii) The extent to which forms of restraint are utilised in respect of the child within the placement and their nature, intensity, frequency and duration;

iii) The nature and level of supervision that is in place in respect of the child within the placement;

iv) The nature and level of monitoring that is in place in respect of the child within the placement;

v) The extent to which rules and sanctions within the placement differ from other age appropriate settings for the child;

vi) The extent to which the child's access to mobile telephones and the Internet is restricted or otherwise controlled;

vii) The degree of access to the local community and neighbourhood surrounding the placement and the extent to which such access is supervised;

viii) The extent to which other periods outside the placement are regulated, for example transport to and from school.'

It should be noted that the power in Reg 20(1)(c) to restrain a child who is trying to abscond is only granted to a secure and not to an ordinary children's home. However, para 9.52 of the Guidance does permit a child to be restrained pursuant to Regulation 20 (1)(b) where the child is putting themselves at risk of injury. As such, there is clearly meant to be a distinction between a secure and a non-secure children's home and that therefore there is clearly not intended to be a general power to restrain a child and prevent them from leaving the premises in a non-secure home; it would have to be assessed in each instance by the children's home that the child was likely to injure herself if they absconded.

The Regulations therefore do not provide for a children's home to restrict a child's liberty in every way that one often sees in a DOL order nor do they provide for all the restrictions set out by Mr Justice Macdonald above. They do not grant, as above, the power to prevent a child from absconding in a non-secure placement. Nor do they provide specifically for constant supervision and monitoring of a child by staff in a placement. 

However, given that there is no set list of factors and the focus must be on the concrete situation in a particular set of circumstances, it must be considered whether use of the various restrictions permitted in the Regulations could amount to a deprivation of liberty. It is submitted that they could, for several reasons:

a. Age. The Regulations provide no spectrum over which restrictions must lessen as a child increases in maturity. Per Cheshire West, all children are subject to some level of restraint, but this must adjust with their maturation and change in circumstances. A child aged 10 is unlikely to be 'confined' even if under near constant supervision, but a court would more readily conclude that an older child under constant supervision is so confined; similarly, it is relatively normal to restrict the use of electronic devices of young children and to ensure they are accompanied in the community, but not so for older children (Re A-F, [39]; [43]). No such gradation applies under the Regulations; the placement's powers are the same regardless of age.

b. Access to parts of the premises. Restrictions on this aspect of a child's life are permitted by Reg.21(c). This is a particularly good example of how the question of whether such restriction might fall within the scope of Article 5 is a matter of nature and degree. Barring a child from using the football pitch on the premises for a week as punishment is unlikely to be a deprivation of liberty, but confining a sixteen-year-old child to her room might well be. The power within 21(c) is wide-ranging enough that it would appear to allow the latter as well as the former.

c. Restraint. Restraint of a child seriously impinges on his or her liberty and might well amount to a deprivation depending on the 'nature, intensity, frequency, and duration', per Macdonald J in Re M, above.

d. Monitoring and surveillance. Although the Regulations do not include an express power for constant supervision, the fact that monitoring and surveillance devices may be used permits a level of supervision that is arguably far higher than the norm and could theoretically be near-constant.

e. Contact. In Re A-F, restriction and supervision of a child's contact with his family was considered a significant restriction which, on the facts, contributed to a finding that he was deprived of his liberty [39].

With regard to all the above factors, the main issue with the Regulations is that the powers of restriction they grant are prima facie broad and, in many respects, unqualified. Although all the restrictions are limited by the fact that they must be used only to a degree that is necessary and proportionate, this does not in itself mean they cannot be used to an extent that they deprive a child of their liberty. A child might regularly need to be restrained as is necessary and proportionate to prevent her from harming herself or others, but this could nonetheless be a significant constraint on liberty. Most importantly, given that all the powers of restriction could in theory be quite wide-ranging, one can easily envision a set of circumstances where the various permissive powers used in conjunction with one another could amount to a deprivation of liberty.


Are the Regulations compliant with Article 5 ECHR?
As discussed above, one particularly troublesome aspect of the 2015 Guidance is the statement that a children's home cannot deprive a child of his or her liberty routinely without a court order. The implication of this must necessarily be that a children's home may do so on a non-routine basis without a court order.

This cannot be right as a matter of law. The caselaw is clear that if an individual is deprived of his liberty, 'it follows as a matter of law that he is entitled to a review by the court of the lawfulness of the detention "at reasonable intervals"…Otherwise there will be a breach of Article 5' (Munby LJ (as he then was), Salford CC v BJ [2009] EWHC 3310). He went on to say that 'regular reviews by the court are not merely desirable, not merely a matter of good practice; they go, as both the Strasbourg jurisprudence and the domestic case-law make clear, to the very legality of what is being done.' [10]

Therefore, any restriction that amounts to a deprivation of liberty simply cannot be Article 5 compliant if the relevant decisions are undertaken without any review by the court. Further, the requirement that the local authority consent to the restrictions in Regs. 22 and 24 is no substitute for review by a court. Lady Hale was clear on this point in Cheshire West, in that a local authority cannot consent to a deprivation of liberty on behalf of a child as this does not ensure proper safeguards or periodic checks are in place.

The question then arises whether the Regulations themselves are compatible with Article 5. As is well known, the process the courts must go through when considering if legislation is compatible with the ECHR is to first consider if the legislation may be given a reading that is Convention-compatible pursuant to s.3 HRA 1998, so far as it is possible to do so. If the court considers it cannot be interpreted as compatible (e.g. if it goes against a fundamental feature or the 'thrust' of the legislation) the court must then decide whether to make a s.4 declaration of incompatibility.

On one reading of the Regulations it could be argued that they are incompatible, given the difficulties highlighted above in the implication that a deprivation of liberty is permitted without court order so long as it is non-routine. However, this is really a problem with the Guidance rather than with the Regulations themselves. 

Although the powers of restriction contained in the Regulations appear to be quite wide, they also might be used in an entirely appropriate way that does not reach the level of a deprivation of liberty. It is considered that the Guidance, or at the very least para 9.63 of the same, cannot possibly be ECHR-compatible, but the Regulations themselves do not seem to go against Article 5 in a fundamental way. Indeed, 20(c) specifically shows awareness of the need to enable the courts to make a DOL order. 

As such, the general 'thrust' of the statute is one that could be read as Article 5 compliant. This would mean the Regulations would need to be interpreted in a way such that their powers are quite narrow and can only be exercised to the extent that they do not amount to a deprivation of liberty (however brief or non-routine).

This reading of the Regulations might in practical effect mean that any exercise by a children's home of their powers of restriction under the Regulation would need to be court-approved to ensure that it does not amount to a deprivation of liberty and is therefore not an unlawful breach of Article 5. At the very least, any use of those powers might need to be considered by the court to cover all bases.

Arguably, this is best practice and should be followed by local authorities and children's homes in any event. Re A-F is clear that an application to the Court should be made where at least arguably (taking a realistic rather than a fanciful view) the circumstances in which the child is living constitute a deprivation of liberty [48]. The phrase 'arguably' sets quite a low bar. It is also worth remembering that a DOL authorisation is merely permissive and does not require the placement to actually restrict the child's liberty in that particular way, albeit there is an obligation to seek review in the event that there is any material change in the circumstances of the child whether by way of improvement or deterioration. Therefore, it is suggested that if there is any doubt as to whether a children's home's use of its powers under the Regulations might amount to a deprivation of liberty, an application to the court should be made so as to avoid any inadvertent breaches of Article 5. 

The authors would also suggest that consideration is given by practitioners as to whether, in any specific individual case, declarations are required that measures, ostensibly permitted by the Regulations, may not lawfully be implemented in respect of a specific child, absent authorisation of the court.

1 http://www.legislation.gov.uk/uksi/2015/541/contents/made
2https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/463220/Guide_to_Children_s_Home_Standards_inc_quality_standards_Version__1.17_FINAL.pdf

2 March 2020