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Deprivation of liberty and writs of habeas corpus

The Court of Protection has court found that if a local authority does not apply for an order under the inherent jurisdiction, a parent can challenge the deprivation of liberty of their child in a specialist school by bringing a writ of habeas corpus. Joshua Swirsky analyses the ruling.

In CGM v Luton Borough Council [2021] EWHC 709 (Admin) NM, who is 12 years old, has a diagnosis of autism and suffers from ADHD. She was placed by her local authority in a secure specialist residential school. Her placement there was pursuant to a care order obtained by the local authority.

The school was in a substantial building in the country with extensive grounds. There were, however, restrictions on NM’s liberty. NM’s father CGM took the view that these restrictions amounted to a deprivation of liberty. The local authority disagreed.

The local authority argued that the restrictions imposed upon her were appropriate to her age and were comparable to restrictions routinely placed on children. The council did not dispute that Storck components B and C were present (derived from Storck v Germany (2006) 43 EHRR 6) but disputed whether component A (the objective component) was present. This will be fact-sensitive in every case as explained by Sir James Munby P in Re A-F (Children) [2019] Fam 45.

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CGM commenced judicial review proceedings seeking a mandatory order requiring the local authority to seek authorisation from the High Court under s100(3) of the Children Act 1989 for leave to invoke the inherent jurisdiction. The council disputed the jurisdiction of the Administrative Court in such a case.

Mostyn J agreed with the council that this was not a proper case for judicial review. However, in the absence of an application from the local authority under s100(3) Mostyn J ruled that CGM had locus to seek a writ of habeas corpus and transferred the case to the family division for further directions. The local authority was also invited to reconsider making an application under the inherent jurisdiction.

Joshua Swirsky is a barrister at Field Court. He represented the local authority in this case.

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