Looked after children and liberty

A recent ruling has shown that a local authority cannot consent to the deprivation of liberty for a Looked After Child, writes Harjinder Kaur Sandhu.

As the court continues its exploration of when an individual is deprived of their liberty, the High Court (Re AB (A Child: deprivation of liberty [2015] EWHC 3125 (Fam)) has now considered whether a child’s parents and/or the local authority can consent to a Looked After Child being deprived of their liberty.

The court ruled that in in some circumstances a parent may be able to consent but a local authority cannot and court authorisation will always be required: a ruling which will certainly have an interesting impact upon local authorities! The court is already faced with a large volumes of applications for adults who are deprived of their liberty following the landmark ‘Cheshire West’ case (Cheshire West and Chester Council v P (2014) UKSC 19, (2014) MHLO 16;) and this recent ruling is likely to increase the volume of cases coming before the High Court but now in respect of Looked After Children under 18.

In Re D (A Child: deprivation of liberty) (2015) EWHC 922 (Fam), (2015) MHLO 33 the court considered the “zone of parental responsibility” and whether parents can consent to the Deprivation of Liberty. However in the more recent case of Re AB, the court has considered whether the local authority and/or parents can consent to a child subject of State intervention being deprived of his or her liberty?

This case is centred on a 14 year old child, AB who presents with Moderate (Severe) Learning Disability and Attention Deficit Hyperactivity Disorder and is on medication. AB requires assistance with taking his medicine, daily activities and preparation of food.

AB was voluntarily accommodated when aged 13 (pursuant to S20 Children Act 1989) in November 2013 and placed in foster care, but moved to a residential home in December 2013 where he remains to date. A rehabilitation plan was in place for AB to return home however as a result of emerging child protection concerns, care proceedings were initiated and in June 2015, AB was made the subject of an interim care order.

Due to AB’s needs, the residential home set in place restrictions to minimise any risk of harm to him. These included AB not being allowed to go out alone and if he left he would be brought back to the residential home.

The local authority considered the “acid test” as set out in ‘Cheshire West’ (above) to determine whether AB was  free to leave and under continuous supervision and therefore deprived of his liberty. The local authority concluded that there was indeed an argument that AB was deprived of his liberty.

AB was only 14 years old and therefore the Mental Capacity Act 2005 would not be applicable. An application for Deprivation of Liberty authorisation could not be made in the Court of Protection and therefore, was made under the Inherent Jurisdiction under S100(4) of the Children Act 1989 in the High Court. Under the Mental Capacity Act 2005, the first question would be whether an adult has the capacity to consent to the arrangements. If they do, then any such restrictions would not amount to a deprivation of liberty. However, the test for a child under 16 is competence and in this particular case it was accepted that AB did not have the competence to understand the restrictions imposed upon him.

In considering the facts of this case Keehan J concluded that “In circumstances whereby a child is a child in need or being accommodated by a local authority - Where the local authority and parents co-operate, it may be an appropriate exercise of parental responsibility and prevent what would otherwise amount to a deprivation of Liberty.”  However at the “other extreme”, if accommodation under S20 Children Act 1989 is just the prelude to care proceedings i.e. where the local authority contends that the threshold criteria under s31 CA89 is met, “it is difficult to see how parents’ consent would fall within ‘zone of parental responsibility’.”   

Keehan J further confirmed that “in circumstances whereby a child is subject of an Interim Care Order/Care Order the Local Authority cannot consent to the deprivation. The local authority is acting as organ of the state and therefore, it would be wrong to see a local authority as having to ‘consent’:- this would be a Breach Art.5 of the Convention and would not afford the ‘proper safeguards’ for legal justifications for constraints.” Further “It would be inappropriate for parents to consent due to the concerns about their ability to exercise their parental responsibility.”

Thus the Court was left with powers under its Inherent Jurisdiction. The court being satisfied that authorisation could not be made by any other order agreed that this would be the only application a local authority could make. Without court authorisation, such a placement would be unlawful. 

In summary:

(i) AB’s placement restrictions met the acid test;

(ii) AB’s parents’ agreement with him continuing to live in the placement did not amount to ‘valid consent’ such as to prevent there from being a ‘deprivation of liberty’ under Art.5 ECHR;

(iii) The deprivation of liberty is justified under Art.5(1)(d) ‘for the purpose of educational supervision’ and Art.5(1)(e) as AB is ‘of unsound mind’;

(iv) The deprivation is ‘necessary’, ‘proportionate’ and in AB’s ‘best interests’;

(v) The Judge (1) granted leave for the application and (2) authorised deprivation, in first instance for 3 months. 

Keehan J noted that local authorities are under a duty to consider whether any children in need or looked after children are subject, at home, in foster-care or in a residential placement to restrictions amounting to a deprivation of liberty.  

More importantly, where the child is subject to an Interim Care Order or Care Order and is not in Secure Accommodation (s25 of the Children Act 1989) then a local authority cannot consent to such deprivation of liberty.

This judgment marks a fundamental question for local authorities to consider – are those looked after children who are not competent to consent to and who have restrictions in their placements potentially being deprived of their liberty?

We need to now watch this space  - will the High Court now find itself inundated with applications from local authorities seeking authorisation for a deprivation of liberty in respect of Looked After Children where the parents’ consent to such deprivation of liberty may not be in the ”zone of parental responsibility”?

Harjinder Kaur Sandhu is a Solicitor at Coventry City Council. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..