Mr Justice Keehan recently considered a case called Re: AB and an application by a local authority in regard to a child who was subject to an interim care order. The Judge determined it would be necessary for the court to make a declaration of the lawfulness of the child’s deprivation of liberty.
The teenager had moderately severe learning difficulties and ADHD. He was living at a residential care home under an interim care order. His parents and the independent Children’s Guardian, who were parties to the application, all agreed that the circumstances in which he lived amounted to a deprivation of his liberty as opposed to merely a restriction upon it.
The Judge determined that the child was subject to continuous supervision and control to a degree that amounted to a deprivation of his liberty. The placement would be unlawful unless approved by the court.
Non-approval would mean that he would have to move to another establishment where he would not be under constant supervision and control and that was not seen to be in his best interests.
The Judge determined that he would grant the local authority permission to invoke the inherent jurisdiction of the court and authorise the child’s deprivation of liberty.
He then went on to provide guidance on the approach to the conduct of similar cases:
i) He reminded local authorities that they were under a duty to consider whether there were any children in need or looked after children, especially those in foster care or in a residential placement, who were subject to restrictions amounting to a deprivation of liberty.
ii) The comparison needed to be made with the circumstances of another child of the same age.
iii) A deprivation of liberty could be lawful if warranted under statute, for example under the Mental Health Act, or criminal powers.
iv) In cases where the child is not looked after by a local authority then the apparent deprivation of liberty might not be a deprivation but fall within the “zone of parental responsibility” exercised by parents. In these circumstances the court would not need to make any declarations as to the lawfulness of the child’s deprivation of liberty.
v) If a child was looked after by a local authority different considerations might apply even if the parents consented to the deprivation of liberty.
vi) If a child was subject to an interim or full care order it was extremely unlikely that a parent could consent to what otherwise would amount to a deprivation of liberty nor could the local authority consent.
vii) The local authority would have to consider whether secure accommodation was applicable or appropriate and, if not, address the issue under the court’s inherent jurisdiction.
These complex cases require specialist advice. This firm has a number of experienced solicitors and members of the Law Society Children Panel and also Mental Health Panel who can provide advice in relation to these issues.
Andrew is a senior associate in the family law team and is based in St Austell. If you would like to contact the family team, please call 01726 74433 or email family.staustell@stephens-scown.co.uk.