BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Family Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> HC (A Minor : Deprivation of Liberty) [2018] EWHC 2961 (Fam) (05 November 2018) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2018/2961.html Cite as: [2018] EWHC 2961 (Fam) |
[New search] [Printable RTF version] [Help]
FAMILY DIVISION
East Parade, Leeds, LS1 2BH |
||
B e f o r e :
____________________
A Local Authority |
Applicant |
|
- and - |
||
The Mother The Father -and- HC (A minor, by his Children's Guardian) |
Respondents |
|
Re HC (A Minor) (Deprivation of Liberty) |
____________________
Michael George (of JWP Solicitors) for the child
Hearing date: 28th August 2018
____________________
Crown Copyright ©
William Tyler QC, sitting as a Judge of the High Court:
Parties, applications and parties' positions
Background
Article 5 was also considered. Deprivation of liberty was determined on the basis that the internal doors at the placement were locked and [HC] has no access to the fob required to open them.
HC's day-to-day regime
a. Restricted freedom of movement:
The external doors of the unit are locked in order to prevent the young persons who live there from leaving unnoticed. Exit is possible only by use of key-fobs in the possession of staff members. RM indicated that there is nothing to stop HC from asking to leave the unit at any time, whether to access the garden or the community more widely, but that any such trip would take place under staff supervision. His ability to go out into the garden for a kickabout is said to be 'unlimited'.
HC is allowed only restricted access to the kitchen, due to his limited understanding of the risks associated with hot water, hobs and ovens, knives and other sharp implements etc.
HC's bedroom door is locked at night-time, but this is from the outside only (i.e. preventing others from entering) and does not prevent him from leaving the room freely.
b. Supervision, support and control:
Due to HC's various vulnerabilities and unpredictable behaviour, he requires constant supervision when out in the community. A further purpose of this supervision is to protect him from what is assessed to be a particular vulnerability to strangers who might pose a risk to him which he would not comprehend or predict.
When in the unit, he is, as described in SW's first statement, 'under constant supervision and control at all times to ensure his safety and wellbeing'. This takes the form of the presence of a familiar member of staff, who also assists HC with his personal care.
RM described HC as receiving 1:1 staffing, which is 'eyes on', in the sense that during waking hours, and apart from various personal care activities, he must be within sight of a staff member. This does not prevent his participation in such activities as football or board or computer games with peers.
c. Imposition of routine:
The unit houses 8 young persons. Meal times are standardised for all. Certain other routines are in place. During the week in term-time, HC attends school. He has a set bedtime.
HC has contact with his parents and brother for four hours every weekend. During such times, his parents ensure his welfare and safety, so no staff presence is required.
d. Restricted access to social media and the internet:
HC's use of the internet and communication by social media is 'closely monitored, so that it is being used appropriately and in accordance with the law'.
e. Restricted access to money:
HC is described as having a 'limited concept of his financial situation or in regards to money'. Accordingly, his allowance is 'managed and controlled by staff', who provide support to HC in making sensible choices as to the purchase of items such as clothing and toiletries.
f. Physical restraint:
On the relatively few occasions on which HC's behaviour has become unregulated such that he has posed a risk to himself or to others, staff have resorted to physical restraint. Staff are trained in 'Team Teach' intervention methods, which are explicitly designed to de-escalate difficult situations, but physical restraint, as a tool of last resort, is occasionally necessary. Most recently, there were three separate occasions in June 2018 on which restraint was necessary.
g. Medical:
HC is prescribed Abilify liquid, Sertraline and Promethazine, each of which he is required to take once daily; under adult supervision HC is able to administer these medicines himself, and is cooperative with the regime; indeed, he is said to enjoy taking it; there is no question of restraint or force being required to ensure compliance.
The law
The right to liberty and security; actionable confinement
Right to liberty and security
1. Everyone has the right to liberty and security of person. […]
States Parties shall ensure that:
[…]
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
[22] Neither Convention referred to above contains a definition of 'liberty'. Nor is it easy to define. In P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19 ("Cheshire West") it was described thus:
"Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one's disposition to exploit one's freedom. Nor is it diminished by one's lack of capacity." (Lord Kerr [76]).
In this definition, the Supreme Court drew from the well-known case of Guzzardi v Italy [1980] 3 EHRR 333 at 92-93 in which it was said that:
"[…] in proclaiming the "right to liberty", paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. […] the paragraph is not concerned with mere restrictions on liberty of movement […].
In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.
The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends."
[23] As Miss Fenwick and Mr Wilkinson have rightly identified, determination of RD's Article 5 rights in this context depends on the application of the three limbed test set out in the case of Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96 , para 71, and 74 ("Storck"), a case concerning a German national and her confinement to different psychiatric hospitals and her medical treatment. This case clarified that deprivation of liberty under Article 5 has three elements:
i) The objective element of a person's confinement to a certain limited place for a not negligible length of time;
ii) A lack of valid subjective consent to the confinement in question;
iii) Confinement imputable to the state.
[48] So is there an acid test for the deprivation of liberty in these cases? I entirely sympathise with the desire of Munby LJ to produce such a test and thus to avoid the minute examination of the living arrangements of each mentally incapacitated person for whom the state makes arrangements which might otherwise be required. Ms Richards is right to say that the Guzzardi test is repeated in all the cases, irrespective of context. If any of these cases went to Strasbourg, we could confidently predict that it would be repeated once more. But these cases are not about the distinction between a restriction on freedom of movement and the deprivation of liberty. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their "concrete situation" on which we need to focus?
[49] The answer, as it seems to me, lies in those features which have consistently been regarded as "key" in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned "was under continuous supervision and control and was not free to leave": para 91. I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only in so far as it demonstrates that the person is not free to leave. 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. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany [2013] MHLR 13.
a. is under continuous supervision and control, and
b. is not free to leave.
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 […].
This does not mean, at least to my mind, that freedom or otherwise occasionally to leave a placement, in accordance with one's whim from time to time, and in order to return shortly thereafter is not irrelevant to the test of confinement, but that it bears, or might do, on the first limb (continuous supervision and control) rather than the second (freedom to leave).
[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 Art 5 has accordingly not been engaged, becomes a 'confinement' for that purpose, therefore engaging Art 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 paras [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 16 and by consequential changes in the employment patterns of young people, mean that the typical child who is not yet 16 years old is not economically active and lives – in reality has no choice but to live – at home. So, the typical child of 15 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 15-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 para [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 Art 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 15-year-old is not free to leave, investigation of that aspect of the 'acid test' will not of itself answer the question whether a 15-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 of Tonaghmore's analysis 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, [2014] 2 WLR 642, [2014] COPLR 313 (at 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' a 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'.
[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 [11]' 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 of Tonaghmore'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 of Tonaghmore.
[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, sub nom A Local Authority v D and Others [2016] 2 FLR 601, at para [38](3). I agree with Keehan J.
i) "It does not matter whether the object is to protect, treat or care in some way for the person taken into confinement" ([28]);
ii) "We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty" ([35]); […]
iii) "What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities" ([46]);
iv) "Thus, you compare the situation of the child or P with the ordinary lives which young people of their ages might live at home with their families. This seems both sensible and humane." ([47]);
v) "the person's compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant" ([50]);
vi) "the distinction between deprivation and restriction is a matter of "degree or intensity" ([62]: see Guzzardi above) […]. In the end, it is the constraints that matter" ([56]).
vii) "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]).
[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 and specialist methods to deal with his behaviour, including physical restraint.
[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.
Authorisation of a deprivation of liberty
[50] Process. The key elements of an Art 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 s 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.
An application to the court should be made a 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.
Discussion and decision
Deprivation of liberty
a. Restricted freedom of movement:
Whether or not a typical 13-year-old is permitted, and so free, effectively at will to leave his home, will depend on a combination of his individual level of maturity, the idiosyncratic view his parents take in relation to balancing risk, safety and autonomy, and the characteristics of the neighbourhood in which he lives which render it more or less safe for a young person (urban or rural location, roads and traffic, crime rates etc.). I consider that while it would be unlikely that he would be able to come and go exactly as he pleases, he would almost certainly be at least on the cusp of being able to undertake such activities as walking to school, walking or catching public transport into a local town or city, perhaps for the purpose of shopping or meeting friends or making his own way to some other place where he and his friends choose to congregate.
b. Supervision, support and control:
Linked to the question of freedom of movement is the question of supervision. A typical 13-year-old will certainly be supervised or controlled in certain formal or dangerous settings. For example, at school, much of the time is supervised to a greater (e.g. in the classroom) or lesser (e.g. during break-time) extent, and a risky sport or activity will generally be conducted under close adult supervision.
However, a typical 13-year old will also enjoy significant periods of time without any active supervision whatever. In particular, it is intrinsic to the lives of teenagers that they are able to spend ever-increasing periods of time speaking to and interacting with their friends and peers, and without this being subjected to adult scrutiny. Equally, it is very much a part of a teenager's life that they are able to spend time alone, without the presence of an adult or any other person, whenever they like (and their routine allows).
c. Imposition of routine:
All 13-year-olds are subjected to a routine. This is likely to be dictated both by school arrangements and by the lives and commitments of those around them, usually their parents and siblings. Most meal times are likely to be set for them by others and they are likely to have a set bedtime, certainly on school nights (even if this is the subject of constant 'negotiation' and probably a certain degree of laxity).
It is, however, unusual for there to be an inflexible routine and significant limitation imposed in relation to the time a young person spends with his immediate family.
d. Restricted access to social media and the internet:
Most 13-year-olds have access to social media and the internet. For many, this represents a very significant element of their burgeoning independence, sense of self and social life. Of course, for most, the use of social media is important because of and to the extent of that young person having both an immediate network of friends and possibly a secondary network of online acquaintances or 'followers' using any particular medium or platform.
To a greater or lesser degree, most 13-year-olds will be subjected at least to parental attempts to monitor and to restrict their use of social media and the internet. Close and constant monitoring of all use would, in my view, be unusual.
e. Restricted access to money:
Most 13-year-olds have an unfettered ability to spend as they choose any small sums of money to which they have access. Most will have a more or less limited supply of larger sums, the dissipation of which is likely to be the subject of adult advice (and occasional veto), but probably not of complete management and control (as is described in HC's case).
f. Physical restraint:
Most young persons are not physically restrained. However, it seems likely that physical restraint, whether from a parent or, say, a school staff-member, would be used if this was deemed necessary in order to protect either the young person or anyone endangered by the young person.
g. Medical:
Any 13-year-old who requires medication will be assisted, overseen or encouraged to comply with the regime to the degree that this is needed, given the particular young person's characteristics. I can readily imagine both the organised 13-year-old who would assume full personal responsibility for taking medication exactly as prescribed without any adult assistance, supervision or reminding and the slightly more chaotic young person who would require rather more prompting.
a. the entirety of HC's interactions with peers will take place in circumstances where an adult member of his care team is charged with maintaining 'eyes-on' supervision, and with the corollary effect that the overwhelming majority of all of HC's conversations with his friends are overheard by an adult;
b. apart from limited and discrete periods to undertake personal care tasks, absolutely all of HC's waking time is observed and supervised by an adult;
c. HC is not able to spend any time at all in the community without close supervision.
a. time alone with friends and peers;
b. significant periods of time left to his or her own devices without adult observation or supervision; and
c. the freedom to choose to venture into and to explore his or her community.
Authorisation of deprivation of liberty
a. HC's placement at the unit and the deprivation of liberty thereby involved are to be subjected to the LA's usual review process for any child in care,
b. there is to be a further judicial determination of HC's confinement, by application to be issued no later than 12 months after the date on which the current application was issued, and
c. the matter must be restored to the court without waiting for this annual review in the event that HC's condition markedly changes or that it is proposed that he move to a different placement.