This case will be interest to commissioners, providers and social workers who are involved in care planning for children and young people subject to care proceedings, where it is possible that the care regime may involve a deprivation of liberty. It is the latest in a line of cases which appear, on their face, to reduce the likelihood of a child or young person being considered to be deprived of their liberty.

 

This case summary should be read in conjunction with:

 

Case 

Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 (28 June 2018)

Relevant Topics

  • Children
  • Young People
  • Deprivation of Liberty
  • Restriction of Liberty
  • Care proceedings
  • Residential placements

Practical Impact

 

 

 

 

  • Whilst care proceedings are ongoing, and it is found that the child is deprived of their liberty, the care proceedings are to be adjourned and the local authority is to present a petition to the nobile officium of the Court of Session seeking authorisation of the child's deprivation of liberty;
  • A typical 14 or 15 year old is not free to leave their home, but regard should be had to the actual circumstances, and whether they amount to a regime of "complete supervision and control" when compared with the notional circumstances of the typical child of the same age, station, familial background and relative maturity who is free of disability;
  • The geographical location of a placement (such as it be far removed from a local town) does not constitute the function of any complete control or supervision of the State, and therefore Article 5 is not engaged;
  • Every 14 year old is liable to appropriately imposed boundaries and sanctions, and if a 14 or 15 year old runs away from home, they are likely to be returned. Forcible restraint or detention in order to do so may reflect reasonable and effective parental authority, rather than complete control;
  • There is a difference between restrictions on liberty, and a deprivation of liberty.

Summary

 

 

 

 

The particular regime that RD was under at Lennox House did not deprive her of her liberty in such a way as to engage her Article 5 rights; the regime was comprised of restrictions on RD's liberty only. The Children Act 1989 proceedings therefore did not require an adjournment for the local authority to seek authorisation of RD's deprivation of liberty.

The finding that there was no deprivation of liberty was specific to the facts of the case, and therefore other teenagers of a similar age may be found to be deprived of their liberty, dependent on their circumstances.

Background

RD, a 14 ½ year old girl, was the subject of application for a care order under the Children Act 1989, and was in the interim care of the local authority at Lennox House. She had been at Lennox House for nine months, and was reasonably well settled there. It was acknowledged that, objectively, the placement was successfully meeting her needs.

The issue for determination was whether the regime for RD at Lennox House deprives her of her liberty in such a way as to engage her Article 5 rights. RD was not Gillick competent to make her own decision about her placement. The judge's main consideration was whether RD was under "complete or constant supervision and control".

Lennox House provides therapeutic accommodation for six young people, ages 12-17. Staff involvement is not seen as supervision, but more that they are on hand to intervene if required. RD was not, for her age, generally treated differently from other residents in terms of supervision and surveillance at Lennox House.

Key Findings

The judge considered that if he were to find that RD was deprived of her liberty, he would be obliged to adjourn the Children Act proceedings, and propose that the local authority present at petition to the nobile officium of the Court of Session seeking authorisation of RD's deprivation of liberty. It was also reiterated that where a child is subject to a care order (whether interim or final), a parent cannot exercise their parental responsibility in such a way as to provide valid consent to the confinement in question.

The judge also outlined the accepted wisdom that a typical 14 or 15 year old is not free leave her home. His primary focus, however, was on the actual circumstances of RD at Lennox House. He considered it necessary to examine whether the circumstances amounted to a regime of "complete supervision and control", when compared with the notional circumstances of the typical child of the same age, station, familial background and relative maturity who is free from disability.

The judge was satisfied that RD was not "free to leave" Lennox House permanently any more than a 14 year old would be "free to leave" her family home.

He considered that the level of monitoring provided by the staff was not any more intense or overt than a parent's watchfulness over young adolescent people in a domestic setting, in similar circumstances. He considered that the degree of supervision was likely greater for RD, given her "younger" presentation or late evolving maturity. RD herself did not feel "watched" all the time, which was a reflection of the actual extent of the supervision.

It was considered that the monitoring of RD as she ventures out into the grounds of Lennox House was "quasi-parental good sense," particularly in light of the busy main road.

The judge did not consider that the geographic location in and of itself of Lennox House to the local town was a function of any complete control or supervision of the State, and therefore did not engage considerations under Article 5.

It was considered that when RD's behaviour (abscondences, disobediences, and/or her distress) justified some restrictions on her movement, that these were appropriately applied and enforced, using the rationale that every 14 year old is liable to appropriately imposed boundaries and sanctions. One of the consequences for RD was the increase in the level of supervision, which was considered akin to parents grounding their teenager, or boarding school heads imposing limitations or tighter restrictions on pupil's ability to leave the campus. Generally, RD had the freedom to wander around the home and enjoy a significant degree of autonomy.

On the occasions where RD temporarily absconded, she either returned voluntarily, or by persuasion. Re A-F outlined that if a 14 or 15 year old child runs away from home, they are likely to be returned. RD had not been forcibly restrained or detained in order to secure her return, and even if she had, this may reflect reasonable and effective parental authority, rather than complete control.

The judge therefore reached the conclusion that, on a fine balance, the regime at Lennox House did not possess the degree or intensity of complete control or supervision of RD, which would justify the description of deprivation of her liberty. The judge considered that insofar as the staff impose limits or boundaries on her movements and freedoms, these represent restrictions of the type which a child of age, station, familial background and relative maturity would have placed upon her.