Case Summary: Re A-F (Children) [2018] EWHC 138 (Fam)

Case

Re A-F (Children) [2018] EWHC 138 (Fam)

Relevant Topics

• Children
• Young People
• Deprivation of Liberty
• Care Proceedings
• When is Article 5 ECHR triggered for a child/young person?

Practical Impact

A Local Authority or Foster Carer with parental responsibility by virtue of a care order cannot provide consent to a confinement (Objective Element) of what would otherwise be an Article 5 deprivation of liberty (i.e. thereby removing the Subjective Element).

Where a child/young person is subject to a care order and is being looked after in circumstances amounting to an Article 5 deprivation of liberty, it is now clear that the relevant legal framework is as follows:

• If a Local Authority applies for a Secure Accommodation Order, then the relevant legal framework is section 25 of the Children Act 1989;
• Otherwise the relevant legal framework for deprivation of a child’s liberty in care proceedings is the Inherent Jurisdiction of the High Court – when commencing care proceedings in the Family Court, should seek for the matter to be heard before a s.9 Circuit Judge who can authorise the Article 5 interferences rather than separate High Court proceedings;
• If it is a young person (i.e. 16 or 17 years), in certain circumstances, the authorisation would need to come from the Court of Protection.

There is a distinction between a "confinement" which would meet the threshold for the Objective Element of an Article 5 deprivation of liberty (and therefore require authorisation) and the "normal exercise of parental responsibility that interferes with a child/young person's freedom of movement…even though it may involve a restriction of liberty" (which wouldn’t require authorisation).

Factors to weigh in the balance to determine which category applies include:

• Child/young person's development;
• Extent of the supervision and control; and
• Restrictions compared to a child/young person of the same age, station, familial background, relative maturity and who is free from disability.

Determined on a case-by-case basis, but as a general rule of thumb:

• Under 10yrs = unlikely;
• 11yrs = maybe if under constant supervision; and
• 12yrs or over = more readily.

Summary

Munby P set out the relevant legal framework for children in care proceedings potentially deprived of their liberty by reference to the cases of Storck and Cheshire West.

The decision was given on a series of cases of children who had health needs including autism and severe learning disabilities and were all subject to care orders. They were in foster care, specialist educational establishments, or single occupancy residential placements and they were all the subject of a high level of supervision.

Sir James Munby, President of the Family Division and the Court of Protection

There is a material difference between a “deprivation of liberty” of a child (which does invoke Article 5) and “restrictions on liberty” (which does not).

Munby P considered the three components set out in the case of Storck, by reference to Lady Hale's consideration of these factors in Cheshire West.

In determining whether a child who is subject to a care order is deprived of their liberty "confinement" is the crucial Storck component. If there is confinement then the State would be responsible and neither a Local Authority (nor a parent) could consent to this through the exercise of parental responsibility.

As to the age when restrictions on a child would be regarded as confinement, whilst each case would need to be decided on its facts the following guidance was given:

- 10-year-old under constant supervision was unlikely to be being deprived of his liberty

- an 11-year-old under constant supervision might be,

-a 12 year old under constant supervision would be more likely to be considered deprived of his liberty.

In considering whether the "Acid Test" in Cheshire West was met, guidance was provided on the approach for children and in particular the use of a comparative approach. The restrictions of the child in question should be compared to a child/young person of the same age, station, familial background, relative maturity and who is free from disability. In addition, the extent of supervision and control should be considered and the young person's development.

N.B. This may appear to be contrary to the guidance from the Supreme Court in Cheshire West that rejected the "relevant normality" and comparator test.