Children and deprivations of liberty

Can the provision of accommodation to a child under s. 20 of the Children Act 1989 give rise to a deprivation of liberty? Alex Ruck Keene and colleagues review a key Court of Appeal ruling.

In RK v (1) BCC (2) YB (3) AK [2011] EWCA Civ 1305 the Court of Appeal has handed down an important ruling upon the appeal from the decision of Mostyn J ([2010] EWHC 3355 (Fam)) that the provision of accommodation to a child (of any age) under s.20 Children Act 1989 is not capable – in principle – of ever giving rise to a deprivation of liberty within the terms of Article 5 ECHR.

That proposition was the subject of sustained criticism, and upon appeal the consensus at the Bar (endorsed by the Court of Appeal) was that the decisions of the ECtHR in Neilson v Denmark (1988) 11 EHRR 175 and of the Court of Appeal in Re K [2002] 2 WLR 1141 demonstrated that:

1. an adult in the exercise of parental responsibility may impose, or authorise others to impose, restrictions upon the liberty of a child; but
2. that such restrictions may not in their totality amount to a deprivation of liberty. “Detention engages the Article 5 rights of the child and a parent may not lawfully detain or authorise the detention of a child.” (paragraph 14).

On the facts of the case before it, the Court of Appeal noted that (although it required some effort to establish the fact) it was clearly recorded that the parents had consented to the arrangements by which their child was placed in accommodation under s.20 Children Act 1989.

The crucial point was therefore whether the restrictions authorised by the parents, individually or cumulatively, amount to detention? The Court of Appeal had no hesitation in concluding that Mostyn J’s conclusion on this issue were correct, Thorpe LJ noting that the restrictions [1] were “no more than what was reasonably required to protect RK from harming herself or others within her range” (paragraph 27).

In coming to this conclusion, Thorpe LJ noted that the parents’ case was that home care for RK was impossible without an intensive support package; he noted that the purpose and effect of such a support package would be to protect RK and others from harm such that “[i]n other words wherever RK is accommodated the same restrictions on her liberty are essential.” RK’s appeal was therefore dismissed.

Comment

The first limb of the Court of Appeal’s decision in this case is beyond criticism (as can be demonstrated by the fact that, ultimately, none of the parties appearing before the Court dissented from the propositions regarding the ability of parents to authorise the detention of their children). It would appear [2] that the general practice generally amongst local authorities is to regard agreements under s.20 Children Act 1989 as not creating a deprivation of liberty; if such a practice exists, it will clearly have to stop forthwith in favour of analysis of the situation of each of the children in question. If the circumstances amount to a deprivation of their liberty, then authorisation will have to be sought by the local authority (the route depending upon whether the child is aged 16/17 or below).

One curious aspect of the judgment is there was no detailed analysis of the circumstances of RK’s care and residence of the nature found in other cases where there has been a debate about whether the individual is deprived of their liberty. However, the second limb of the Court of Appeal’s decision (especially when read together with the decision in Cheshire West and Chester [3]) suggests that it is unlikely that many children placed under s.20 Children Act 1989 will, in fact, be deprived of their liberty. This aspect of the decision is rather more open to question, not least because of the emphasis in Thorpe LJ’s reasoning upon the fact that the measures were aimed at the protection of RK and of others. Whilst the line between the existence of a deprivation and its justification has been blurred by the re-emergence of purpose in Cheshire West, it must be questionable whether it has been blurred sufficiently that protective measures, per se, can be deemed not to amount to a deprivation of liberty because they are protective.

Alex Ruck Keene, Victoria Butler-Cole, Josephine Norris and Neil Allen are barristers at 39 Essex Street.

1. The Court of Appeal did not analyse the regime in any detail. At first instance, Mostyn J made reference to the regime in the following terms: “At KCH she is closely supervised to prevent her harming herself or others. She compliantly takes her prescribed medicines. She has not been forced to do so, nor has she been restrained, other than on a few occasions for the purposes of preventing her from attacking others. If she behaves badly then minor sanctions have been imposed on a few occasions such as not allowing her to eat a takeaway meal or stopping her listening to music when in a car. The front door of KCH is not locked. Were RK to run out of it she would be brought back.” (paragraph 36(iii).
2. Such being put to Mostyn J by BCC at first instance: see paragraph 7 of the judgment.
3. To which no reference is made in the judgment.