Deprivation of liberty and local authority care arrangements for children

Re A-F (Children) (No. 2) [2018] EWHC 2129 (Fam), Sir James Munby, 8 August 2018

The case concerns the deprivation of liberty of children subject to care orders.

It follows on from Re A-F (Children) (Restriction on liberty) [2018] EWHC 138 Fam; [2018] 2 FLR 319 (see our case summary here) in which it was held:

• neither local authority nor parent can exercise their parental authority so as to give a valid consent to the confinement of a child in care that would otherwise give rise to a deprivation of liberty;
• the critical question of whether the placement involves a confinement of a nature that constitutes a deprivation of liberty turns on comparing the restrictions involved with those for other children of the same age, station, family background and relative maturity who is free from disability;
• where there is a deprivation of liberty, there must be judicial authorisation under the inherent jurisdiction in the High Court or, if the child is over 16 (and lacks capacity under MCA 2005), alternatively, in the Court of Protection.

(See paragraphs 12, 26, 33, 41-44 of the judgment.)

Re A-F (Children) (No.2) concludes the proceedings with final orders authorizing the deprivation of liberty for a period of 12 months for the 7 children. The court formulated standard forms of order which are annexed to the judgment.

In view of the fact that 2 of the children would soon be 16 years old, the court considered whether to transfer their cases to the Court of Protection under the MCA 2005 (Transfer of Proceedings) Order 2007 but decided not to do so because the children’s welfare would be better secured within the care regime.

Comment

This is another in a series of cases dealing with the issue of when the circumstances of a child looked after by the state amount to a deprivation of liberty.  The Re A-F approach in relation to children in care was followed in Northumberland CC v MD & Others [2018] EWFC 47, 28 June 2018. Cobb J held that a girl aged 14, who was not Gillick competent, who was subject to a care order and placed at Lennox House was not deprived of her liberty because the restrictions were of the same type as for other children of her age, station, familial background and relative maturity.

As regards children accommodated under s 20 Children Act 1989 (not under a care order) the Court of Appeal held in D (A Child) [2017] EWCA Civ 1695 October 2017 that parents can exercise parental responsibility to consent to confinement where a 16-17-year-old lacks Gillick competence. See our case summary here. Permission to appeal to the UKSC has been granted. The appeal will be heard very soon (3-4 October 2018).