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Tameside Metropolitan Borough Council v C & Ors [2021] EWHC 1814 (Fam)

Application by the local authority to deprive a 17 year old boy (L) of his liberty under the inherent jurisdiction and thereby to extend his time at his residential unit. One of the main issues was whether it was right to deprive a child of his liberty just because there was no alternative options available to safeguard the child. NB: Certain of the issues in this case are currently the subject of consideration by the Supreme Court, from which court judgment is awaited in the appeal from the decision of the Court of Appeal in Re T (A Child) [2018] EWCA Civ 2136.

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1. L was adopted by the parents when he was four years old. L was removed from his birth mother's care following a history of maternal alcohol abuse, neglect, inconsistent parenting and concerns around sexual abuse. It was also recorded that, prior to his removal, L was noted to have multiple fingerprint bruising on his body.

2. The adopters (parents) struggled to meet his needs and therein followed numerous psychological/psychiatric assessments of L as his behaviour steadily declined and he was demonstrating increasingly difficult behaviours, including making threats with a knife, smearing faeces, food hoarding, arson, aggression towards the family pet, sexualised behaviour and sexually harmful behaviours towards fellow pupils and teachers. As time moved on L was also noted to make threats to kill himself and others.

3. Numerous recommendations were made as to therapeutic packages and multiagency care planning.

4. On 18 December 2017 L was accommodated by the local authority but his behaviours escalated and in March 2017 the local authority issued care proceedings (s31 CA 1989) and L was subsequently placed in residential accommodation.

5. Care proceedings concluded later that year with final care orders being made in respect of L.

6. Since that date, L  had thirteen placement moves and seven separate substantive residential placements in the course of less than five years. There remained no placement identified that could meet his assessed needs, Each placement  broke down consequent upon the behaviour exhibited by L, which  continued to be violent, threatening, and sexually inappropriate.

7. As L was moved to an unregistered unit, the  local authority made an application for permission to invoke the inherent jurisdiction and for an order authorising the deprivation of L's liberty 2020. The initial hearing took place on 18 February 2020 before HHJ Allweis. An order authorising the deprivation of L was made; this interim order made was subsequently extended on eleven occasions between 6 February 2020 and 6 January 2021 in circumstances where L's placement remained unregistered despite the efforts of the local authority to move the registration process forward.

8. In making the application the local authority conceded that the current placement was not meeting L's needs but in the absence of any other option being available it was in L's best interests for the court to deprive L of his liberty to keep him safe.

9. The parents sought the staged return of L to their care but however submitted that pending this course of action, it remained  in L's best interests for the deprivation of his liberty to be authorised by the court. The parents supported certain elements of the order depriving L of his Liberty ie at times requiring  restraint to prevent him harming others,  however, contended that other elements  authorising the deprivation of L's liberty should be dispensed with, including the prohibition on L having a mobile phone.

10. On behalf of the child it was argued that the best interests principles must be applied and the court must have the child's welfare  as the paramount consideration thereby undertaking a rigorous analysis as to whether the arrangements were necessary, proportionate and, crucially, in the child's best interests. It was submitted that the  function of the court cannot be reduced to an administrative, transactional one in which the court acts as a rubber stamp to a fait accompli. In addition it was submitted that a lack of another suitable placement should not be  determinative as to the success or otherwise of the application.

11. In determining the application, McDonald, considered all the authorities regarding the issue of deprivation of liberty, the relevant principles to be applied and also the Articles 5and 8 of the ECHR.

12. McDonald J said that whilst not determinative,  the lack of availability of any alternative course of action with respect to welfare is one factor to be taken into account in evaluating properly the extent to which in it is in L's best interests for the court to authorise the current restrictions.

13. McDonald J also accepted where the merit of the sole placement available was  limited to keeping the child safe in the broadest sense, taking into account the unavailability of alternatives risks the welfare outcome arrived at was one that will be based on an undesirably narrow welfare formulation that can come closer to a test of necessity than a test of best interest.

Case summary by Tanya Zabihi, Barrister, Albion Chambers

For full case, please see BAILII