A Family Court judge has sharply criticised a local authority over its failure to seek the court’s authorisation of a deprivation of liberty (DoL) of a 13-year-old boy (AB).
In AB (A Child : human rights)  EWFC B100 (01 April 2021) [published on Bailii this week] Dexter Dias QC, sitting as a judge of the High Court, said that for several months AB had had his liberty restricted in a 'residential unit', a privately run care home.
“When the local authority that placed AB there was specifically pressed by this court, it conceded that between November 2020 and March 2021, AB was confined in the residential unit without lawful authority,” he said.
“The deprivation [of] this child's liberty was unlawful. That is the crux of the problem in this case. Regrettably, it is not the only one. Yet today the local authority applies to further deprive AB of his liberty.”
Judge Dias said he had emphasised in the proceedings that this historic illegality was a matter of the gravest concern to the court. “This court exercises its inherent jurisdiction not as a mere technicality, but as a constituent part of the rule of law. To have a person confined without lawful authority, and particularly a child, and particularly an exceedingly vulnerable child, is a matter of the utmost seriousness. It is a fundamental interference with the child's rights under the European Convention on Human Rights and the UN Convention on the Rights of the Child.”
The background to the case was that AB’s parents had far-reaching problems and had been unable to care for him. A special guardianship order was granted before his first birthday in favour of his paternal grandmother in 2009. Problems developed there also, the judge said, and there were several police callouts. In February 2020 the grandmother took AB to a police station stating she could no longer cope with his behaviour.
In March 2020 the local authority issued protective proceedings. An interim care order was granted the same month. AB was placed in foster care but the foster carers were unable to care for him due to his complex needs and emotional dysregulation.
In August 2020 AB was placed in a residential unit. An assessment by a child psychologist confirmed a clinical diagnosis of Autism Spectrum Disorder (ASD), severity level 1 without intellectual impairment. She also made a concomitant diagnosis of Oppositional Defiant Disorder as well as attachment issues. In a second report she stated that AB would need to stay in a small unit with simultaneous therapy for 9-12 months.
In January 2021 AB was involved in an incident in the care home when he was physically restrained. He complained that a member of staff tripped him up unnecessarily. The staff member, who said he had lost his balance due to an ear infection, was suspended and not permitted to return to the home.
On 28 January AB's social worker informed the Children's Guardian of the incident earlier that month with AB. The Guardian told the social worker that the local authority should consider applying for a Deprivation of Liberty order.
“This was the right thing to do, and the Guardian's judgement unquestionably correct. Unfortunately, it was not followed through with adequately,” Judge Dias said.
On 5 February there was a Looked-After Child Review, which the Children's Guardian attended. It was brought to the meeting's attention that AB had been restrained twice since the previous review and a staff member from the latest restraint had been suspended. The recommendation of the meeting was that the placement continue and the social worker take advice about a DoL application.
Three days later the Children's Solicitor, on behalf of the Guardian, emailed the local authority requesting them to reconsider applying for a DoL order. The local authority replied that there would be a meeting on 18 February to consider the DoL situation and any possible application.
“After that the trail goes cold,” the judge said. “Subsequent to that point, the local authority did not revert to the Children's Solicitor or indeed the Guardian.”
The Children’s Solicitor, who represented the Guardian, accepted that she should have referred this unexplained failure to respond to the court.
The local authority's overarching application for a care order was set down for a final hearing in March. However, on the first day, all parties agreed that the hearing could not proceed.
“The problem was not an evidential one,” Judge Dias said. “It concerned AB's placement at the residential unit. Serious issues flowing from worrying events at the unit had come to the attention of the local authority over the immediately preceding weekend."
The judge said these concerns included AB fighting with other young people in his placement, engaging in challenging behaviour towards other young people, allegations AB made that he was being bullied, and concern that AB was accessing adult images on the internet.
The local authority concluded that the residential unit was not appropriately safeguarding AB. The court sought more detailed information about these “troubling” reports.
The local authority filed its first DoL application, which was heard two days later by the court. The Registered Manager of the unit attended the hearing remotely and briefly addressed the court. The declaration sought by the local authority was granted, invoking the court's inherent jurisdiction.
At the same time the court was concerned about AB. It made various case management directions, including a direction requiring information about AB's residence at the unit be provided to the court, given the concerns ventilated by the local authority.
In the background AB’s social worker had contacted Ofsted, which in turn conducted a monitoring inspection of the care home. Ofsted’s report was “scathing”, the judge said, and the registration of the residential unit was suspended immediately. The children, including AB, were rehoused. The watchdog specified 11 statutory requirements for necessary remedial work prior to any reopening.
On 24 March the local authority filed a second DoL application.
On the issue of the deprivation of AB’s liberty, Judge Dias said earlier in his ruling: “How could it come about that a child could be detained without lawful authority for months and no one did anything about it? Should the court authorise the further deprivation of AB's liberty today? These are among the urgent issues for this court to determine. Therefore, the court rules today upon a second application by the applicant local authority to deprive AB of his liberty by invoking the inherent jurisdiction of the High Court.”
After setting out the law and reviewing the evidence, Judge Dias subsequently concluded that it was lawful and in the best interests of AB to be deprived of his liberty at the second home and accordingly he authorised such deprivation of liberty. He also approved certain measures as constituting a necessary and proportionate deprivation of his liberty, saying these were the least restrictive intervention to meet the risk of harm that arises.
Returning though to the issue of the unlawful deprivation of liberty of AB, Judge Dias noted the comments of MacDonald J in LB Lambeth v L (Unlawful Placement)  EWHC 3383 (Fam):
"it is vital that all local authorities adhere strictly to the proper legal procedures where a child is to be deprived of his or her liberty in a placement. Those proper procedures are summarised comprehensively in the foregoing paragraphs taken from Re A-F (Children)  EWHC 138 (Fam) and must be followed by local authorities assiduously."
Judge Dias said: “Here when specifically asked by the court, the applicant local authority accepted that it had failed to ensure that the proper procedures were followed at all, let alone assiduously. No application was made to invoke the inherent jurisdiction until the case came before me in the first week of March 2021.
“No legitimate or plausible reason has been given for the local authority's failure to seek the court's authorisation. These, I reiterate, are not technicalities. They are requirements of the rule of law. Either a deprivation of liberty is lawful or it is not. Between November 2020 and early March 2021, it was not.”
Judge Dias said his task at the hearing was not to consider damages under the Human Rights Act 1998. But he added how MacDonald J had sounded “an appropriately cautionary note” in Lambeth v L (above):
"Local authorities are under a duty to consider whether children who are looked after are subject to restrictions amounting to a deprivation of liberty. A local authority will plainly leave itself open to liability in damages, in some cases considerable damages, under the Human Rights Act 1998 if it unlawfully deprives a child of his or her liberty by placing a child in a placement without, where necessary, first applying for an order authorising the deprivation of the child's liberty."
Judge Dias also commented on the role of the Children’s Guardian. He said that the children's solicitor had accepted that there was a failure to restore the matter to court when it was evident that the local authority was not taking the procedural steps it should have taken to ensure AB's deprivation of liberty was lawful.
He described that concession as responsible. “However, this failure highlights the critical and central function of a children's guardian.”
Judge Dias said the statutory basis of the role was clear. “Section 41(2)(b) of the Children Act 1989 emphasises that the duties of the guardian include an obligation 'to safeguard the interests of the child'. It is quite plain, as observed by Theis J in LR v Local Authority & Ors  EWFC 49, that Practice Direction 16A Part 3 imposes upon a guardian a duty to take proactive steps as part of the core safeguarding function. Her Ladyship made plain at  that:
"The child is a party to the proceedings for a reason; so, their position can be properly protected and, in appropriate circumstances, seek directions from the court and make applications, for example, an application for an expert under Part 25 FPR 2010. It is not a passive role, just receiving requests or directions from others. The need for the guardian to undertake a proactive role in appropriate cases is wholly in accordance with the rules and their obligation to 'safeguard the interest of the child'." (emphasis provided)”
That did not happen, Judge Dias said. “A vital opportunity to safeguard AB was missed. In future everything should be done to prevent this kind of avoidable lapse.”
Finally the judge said: “The very last thing I wish to say is to AB. If one day he reads this judgment, he may well ask with some justice why it took so long for so many professionals charged with safeguarding his best interests to make sure he was being treated lawfully.
“The only answer this court can give is this: that inexcusable failure to vigilantly scrutinise and safeguard the freedom and personal security of this highly vulnerable child ends here. His necessary deprivation of liberty has been put on a lawful footing. Too late, I acknowledge. But at last.”
Judge Dias added: “The precise origins of the court's inherent jurisdiction may now be unascertainable, but centuries after its inception an extremely vulnerable child stands in need of its protective powers. This court will continue to exercise its inherent jurisdiction to ensure AB is 'protected and properly taken care of' as Practice Direction 12D demands.”
He directed copies of the judgment be provided to the Children's Commissioner for England and Ofsted.