This is the second of two posts considering the combined impact of two recent cases of the President (sitting in the Court of Appeal, and at first instance) on how the family courts should approach cases where there is an element of confinement of a child our young person (under 18) which may amount to a deprivation of liberty. The first post can be read here.
To recap, in the first post I considered in some detail the case of Re D  EWCA Civ 1695 in which the Court of Appeal tackled the thorny question of whether a parent can provide valid consent to a confinement so that it does not engage Article 5 (spoiler: yes, they can). The President, with whom the other remainder of the court agreed, concluded that the ability to provide valid consent fell within the “zones of parental responsibility” if the child is not competent to make his own decision (that is, he is not Gillick-competent). As a digression, an interesting question which has not yet been answered is whether (even if a child is Gillick-competent) a parent can nevertheless provide valid consent. After all, in the context of medical treatment at least, consent is a ‘flack-jacket’ and a parent can provide sufficient consent, even where a competent child refuses (Re W  Fam. 64). That is a discussion for another time.
In this article, I consider the subsequent decision of the President in Re A-F (Children)  EWHC 138. In Re A-F, Munby P. was sitting in the Family Division. The President was considering a number of consolidated cases in each of which the child (who had some form of mental disability or impairment) was placed in care, in either foster care or a specialist residential facility. The question before the Court was one that the President had touched upon in Re D but was not before him for consideration in that case and, thus, his comments were obiter. The question is this: where a child is subject to a care order, and placed in foster care, is there a deprivation of liberty? A simple question to pose, but more tricky to answer.
Storck component (c) is clearly engaged as the child is in care, and therefore any confinement would be attributable to the state.
On the question of Storck component (b) the court endorsed what was said by Keehan J in a separate case (Re AB (Deprivation of Liberty: Consent)  EWHC 3125 (Fam)) which is that where a child is placed in the care of the local authority pursuant to a care (or interim) care order, neither the local authority nor parents can provide valid consent to the confinement. That case was cited without comment by the Court of Appeal in Re D. It follows, given the President’s endorsement, that the deprivation of liberty cannot be avoided on the ground of consent.
The only remaining refuge lies with Storck (a). As a reminder, the “acid test” formulated in Cheshire West of whether a person is confined for the purpose of Storck (a) is:
“whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives.”
There were thus two questions for the Court to address: (1) is a child in care is under the complete supervision and control of those caring for her; and (2) is she free to leave the place where she lives?
Dealing firstly with whether a child is free to leave the place where she lives, the Court held that the realities of modern life are such that a child under the age of 16 has no option but to live at home, and therefore is not, in the sense of the expression used in the authorities, free to leave the place where she lives. The President appears to have established a precedent that the typical child under the age of 16 is not ‘free to leave the place where she lives’. The critical question then in cases of this nature must be whether or not the child is under the ‘complete supervision and control’ of those caring for her.
In Re D the Court posed this quandary:
Take a typical child say three or eight years old (the precise age is immaterial). By typical, I mean a child subject to no physical or mental disabilities who is, broadly speaking, at the same developmental stage as most children of the same age and who is living with parents at home, without any local authority involvement, in the kind of circumstances in which, broadly speaking, most children of that age are accustomed to live in contemporary Britain. Now such a child is living in circumstances which plainly satisfy the Cheshire West “acid test” – the child, to use Baroness Hale’s words, “is under the complete supervision and control of those caring for her and is not free to leave the place where she lives.” But common – sense would plainly indicate that such a child is not, within the meaning of Article 5, deprived of his or her liberty. But – and this is the key question – why not?
The answer to that question was simple: there was no state involvement and so it could not be a deprivation of liberty (Storck (c) not being satisfied). The question becomes more difficult to answer when the facts are changes slightly, and the same child is in foster care pursuant to a care order. There is then clear state involvement. The issue in that varied factual matrix must then be whether: (a) there is a valid consent; or (b) whether or not the child is, objectively, confined. Having already considered (a), the determinative question becomes (b).
In addressing this issue, the President returned to Cheshire West. His Lordship found assistance in the speech of Lord Kerr. Lord Kerr reminded us that the correct comparator when considering whether someone is confined is someone of similar age, station, familial background, relative maturity and without disability. He continued, at paragraph 78, to say:
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.
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.
Whilst not a question before them for consideration, the Court of Appeal in Re D (Munby P. and Irwin LJ, with David Richards LJ declined to express a view) considered that a young child is not ‘confined’ despite living in circumstances which meet the “acid test”.
The President revisited this theme in Re A-F, when it was before him for consideration. He affirmed his comments in Re D. The follow up question was then posed: at what stage (or age) does a set of circumstances which would not in a ‘young child’ amount to a confinement, subsequently become a confinement? At what age does ‘complete supervision and control’ pass from the ordinary to something extra-ordinary so as to become a confinement which may engage Article 5?
Whilst the Court stressed that each case must be considered on a case by case basis, the President did feel able to provide some general guidance, which will be of use to practitioners in future cases:
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.
The situation has now then, fortunately, been clarified to an extent. A child in care under the age of 10 is unlikely to be deprived of their liberty regardless of the level of control and supervision; a child aged 11 may be subject to constant supervision and control such as to lead to the conclusion that he is confined but a court should be slow to reach such a conclusion; and a child aged 12 or over under constant supervision and control is more likely to be confined which may engage their rights under Article 5.
Whether the particular circumstances amount to constant supervision and control must inevitably be considered on a case by case basis, but the authorities seem to suggest that where: a child is supervised on a 1:1 basis around the clock; is not able to leave their home without the consent and supervision of an adult; and may be physically restrained if they so try to leave a Court is unlikely to find it difficult to reach the conclusion they under constant control and supervision.
Anecdotally, many residential placements for elder teenagers have these very high levels of control. Other issues to look out for are whether there are locks on the internal and external doors and when they are activated; how a carer or residential unit will act if the young person attempts to leave (will they employ physical restraint?); what are the staffing levels; what are the restrictions on the young person spending time with the other young people at the home; and what is the restriction or control on the use of internet and mobile phones.
If, having considered those checklists, practitioners come to the view that the child may be under constant supervision and control, it is prudent to bring these matters to the attention of the Court to allow it to be the ultimate arbiter: this protects against risk that the child may be subject to an unlawful placement.
At the conclusion of Re A-F, the Court was invited, and acceded to the invitation, to provide some guidance as to the correct approach to these applications by local authorities, the Court and parties generally. Practitioners would be wise to familiarise themselves with it [paras 47 to 57].
- A confinement will be lawful if it is both necessary and proportionate, and has been authorised by a judge of the Family Division;
- An application should be made where the circumstances in which the child is, or will be living, constitute at least arguably a deprivation of liberty;
- There is no need for the court to make an order specifically authorising each element of the circumstances constituting the confinement, but should authorise the deprivation at “X” placement as described in document “Y”;
- There must be an oral hearing in the Family Division;
- A Children’s Guardian must be appointed, but if the child is of an age and wishes to express his feelings he should be able to do so in person;
- Where an order is made, there must be regular reviews and at least once every 12 months. If the local authority considers there needs to be continued authorisation, a fresh application should be made. The judge can direct that subsequent applications be dealt with on the papers in the first instance if there is no significant change in circumstances, with an oral hearing to follow if necessary.
- The evidence in support of an application should address: (i) the nature of the regime and those features which may involve a confinement; (ii) the child’s circumstances which led to the proposed placement; (iii) why the regime is said to be necessary and proportionate; (iv) the views of the child, the child’s parents, and the IRO; (v) recentl LAC review minutes, and care plan; (vi) evidence of the child’s competence (which may require an expert report);
- Where there are concurrent care proceedings, the fact that the case may involve a deprivation of liberty should be raised at the earliest opportunity. The Court should list the final hearing before a section 9 judge where possible. Where it is not possible for the final hearing to be listed before a section 9 judge, steps should be taken to arrange a separate hearing as soon as possible and if at all possible within days at most.
- Typically, there will be no need for the judge hearing the application for authorisation to revisit the matters already determined by the care judge, unless there are grounds for thinking that the circumstances may have changed. The care judge should, wherever possible and appropriate, address as many of these issues as possible in the care proceedings judgment.
I have said it before, and I will say it again, practitioners should be astute and alive to these issues. They are serious issues, and may have serious consequences if they are not identified and dealt with. They may lead to breach of the young person’s rights, and possible exposure of local authorities to damages. Beware!