Children 'beyond parental control' and deprivations of liberty

Francesca Massarella reports on a case which considered when it is necessary to deprive a child’s liberty because they are ‘beyond parental control’ in the context of s.31(2) Children Act 1989.

In Re J [2020] EWHC 2395 (Fam) (Mr Darren Howe QC sitting as a Deputy High Court Judge) J was 16½ years of age at the time of the hearing (25th August 2020). The local authority said he was beyond parental control to the degree necessary to meet the threshold criteria under s.31(2) Children Act 1989. This was not disputed by J’s mother, who has been consistently worried for J’s safety as he often goes missing and does not return for numerous days.

J has had multiple incidents of involvement with the police, often concerning possession of drugs and potential connections with the distribution of them. He had been present during violent crimes including witnessing a friend losing two fingers after being attacked with an axe. He was also the victim of a serious assault himself in March 2020. He was said to be entrenched in gang culture in London and is believed by the local authority to be an exploited child involved in county lines drug distribution.

A number of low-level interventions were put in place to attempt to assist J but no change in behaviour was achieved.

On 18th August 2020, the local authority applied to the court for an interim care order, specifically to provide “a residential placement with deprivation of liberty attached [to]… ensure J is safeguarded and also afford him the stability he requires while work is completed with him to support him.” This application was heard by a Circuit Judge on 21st August 2020, but the children’s guardian felt she could not support the local authority plan until there was an identified placement, although she did not oppose the application for the interim care order.

The placement was proposed along with a list of anticipated necessary restrictions, which included; restrictions on J’s use of phone, internet and correspondences; restrictions on his use of windows and doors; and to have his possessions searched and permission granted to have such belongings removed.

The court considered principles from the case of Surrey County Council v P and others (Equality and Human Rights Commission and others intervening), Cheshire West and Chester Council v P and another (same intervening) [2014] UKSC 19, where the Supreme Court described three components of deprivation of liberty, derived from the ‘Storck’ test:

1. ‘the objective component of confinement in a particular restricted place for a not negligible length of time’
2. ‘the subjective component of lack of valid consent’
3. ‘the attribution of responsibility to the state’

The court concluded that the restrictions constituted a significant restriction of liberty, satisfying the objective element of the test.

The Court then referred to the case of Re D (A Child) [2019] UKSC 42, which provided that a parent could not give consent for the deprivation of liberty of 16 and 17-year-olds, the mother’s agreement thus amounting to a lack of valid consent and satisfying the second component of the Storck test.

The third component of the Storck test was also satisfied as it was the state in the guise of the local authority that sought to deprive J of his liberty. Consequentially, all three components of the Storck test were met.

At paragraph 22, Mr Darren Howe QC determined that there was ‘reasonable cause to believe that J [would]… suffer serious harm if the local authority [was]… not granted permission to invoke the inherent jurisdiction of the High Court.’ There were serious risks of significant injury and a very real risk of death to J. The care plan proposed by the local authority was deemed necessary and proportionate to protect J from harm.

An interim care order was granted to the local authority for J until the conclusion of these proceedings. The local authority was granted the authorisation to deprive J of his liberty as may be required both when informing him of the court’s decision, transporting him to the unit and when within the unit itself.

Such authorisation was however only granted for 8 days because the court made clear that J ought to have the opportunity to be heard given his age and the matter was re-listed for the consideration of a longer period of authorisation after J had made representations for himself.

Mr Darren Howe QC concluded the judgment by directing a message to J on the basis that he was likely to read this judgment. He made clear that the steps taken today were necessary to prevent J from putting himself in danger and that he would hear from J when the case came before him again next week.

Francesca Massarella is due to begin pupillage at Spire Barristers in September 2021.