In response to the increasing numbers of applications to the family division of the High Court requesting authorisation of a child's deprivation of liberty, the president, Sir Andrew McFarlane, created a specialist National Deprivation of Liberty Court. The court was launched on 4 July 2022 for an initial 1-year trial.
The number of applications requesting the High Court exercise its inherent jurisdiction to authorise a child's deprivation of liberty rose from 108 cases in 2017–2018 to 579 cases in 2020–2021 (Roe, 2021). The aim of the National Deprivation of Liberty Court is to develop expertise in cases where children with complex needs and those at risk of significant harm are subject to restrictions that amount to a deprivation of liberty. This court does not hear cases relating to adults.
Deprivation of liberty and children
Children are often subject to restrictions imposed by their parents or a person acting in loco parentis with such restrictions amounting to a deprivation of liberty. In RB v BCC and others [2011] the Court of Appeal held that both the European Court of Human Rights in Neilson v Denmark (1988) and the Court of Appeal in Re K (A child) (Secure accommodation order: right to liberty) [2001] had established that a person exercising parental responsibility had wide-ranging authority to make decisions for a child that included the right to impose or authorise others to impose restrictions on the liberty of the child as long as this was a reasonable exercise of parental responsibility.
Although this approach was confirmed in Re D (a child) [2019], the Supreme Court held that a parent's right to consent to restrictions although extensive is not unlimited. It must be a reasonable exercise of parental responsibility and once the child turns 16 the parents' authority to give such consent ends.
In Re A-F (Children) [2018] the court held that where a child is subject to a care order or interim care order under the Children Act 1989, it would not be a reasonable exercise of parental responsibility for the parents to consent to restrictions that amount to a deprivation of liberty. The local authority would also be unable to give that consent. Any deprivation of liberty would need to be authorised by a court.
Deprivation of liberty
In Re A-F (Children) [2018] the court held that for a deprivation of liberty to arise three elements would need to be satisfied:
- An objective element
- A subjective element and
- Imputability to the state (Storck v Germany [2005]).
The objective element of a deprivation of liberty considers the specific situation of the child. For an objective deprivation of liberty to arise there must be an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. It would not arise where there are restrictions and limitations such as being compelled unwillingly to go to school or asked to go to bed at a given time as these would not fulfil the objective element in Storck.
The subjective element applies where consent has not been given for the restrictions by a Gillick-competent child or a person acting within the scope of their parental responsibility such as where the child is subject to a care order.
The restrictions can be imputable to the state where the state or its organisations such as the NHS or local authorities are directly or indirectly responsible for the restrictions, this would include where the child is subject to a care order.
Authorising the deprivation of liberty of a child
Local authorities would generally deprive a child of their liberty through the use of secure accommodation orders obtained from a court under section 25 of the Children Act 1989 or section 119 of the Social Services and Wellbeing (Wales) Act 2014. The Children (Secure Accommodation) Regulations 1991 and The Children Secure Accommodation (Wales) Regulations 2015 extend the use of secure accommodation to hospitals.
Local authorities can only make use of secure accommodation in suitably registered children's homes. Hospitals and other health service premises can make use of the power without having to pre-designate the accommodation as secure but can only use it for 72 hours in any 28-day period before requiring authorisation from a court (Re B (A Minor) (Treatment and Secure Accommodation) [1997]).
The inherent jurisdiction of the High Court
The limited availability of registered secure accommodation and the complex needs of the children requiring restrictions to protect them from significant harms means that secure accommodation orders are not suitable or not available in many cases.
Where a child with complex mental or physical health needs is deprived of their liberty in accommodation that is not secure accommodation then a judge of the family division of the High Court can authorise the deprivation of liberty by exercising their inherent jurisdiction (Re D [2017]). The court can exercise its inherent jurisdiction where it has reasonable cause to believe that the child would otherwise suffer significant harm (Children Act 198, section 100(4).
In Re X [2016] the court held that a judge exercising the inherent jurisdiction of the court, regarding minors, has the power to direct that the minor shall be placed and remain in a specified institution such as a hospital or residential unit. The court's powers extend to authorising the minor's deprivation of liberty and the use of reasonable force to ensure the minor remains there.
In Re X [2016] a 10-year-old boy with autism spectrum disorder and a learning disability put himself in dangerous situations that required him to have constant supervision and periods of physical restraint in the specialist unit where he was accommodated. The court accepted that the restrictions were necessary to promote his welfare and protect him from harm and did amount to a deprivation of liberty. The court also accepted that it would not be appropriate to move the minor to a unit that provided secure accommodation and his needs were being fully met in the specialist unit. The court authorised the deprivation of liberty by exercising the inherent jurisdiction.
National Deprivation of Liberty Court
The National Deprivation of Liberty Court now hears such cases to ensure consistency and to develop the expertise of judges. Since its introduction it has heard some 854 children have been subject to an application for a deprivation of liberty authorisation.
In its analysis of the cases the Nuffield Family Justice Observatory (2023) found the applications are made because of an immediate and severe risk to the child compounded by a lack of suitable accommodation registered to care for children with complex needs in secure accommodation. This requires the National Deprivation of Liberty Court to authorise deprivations of liberty in unregistered placements such as hospitals and residential homes in half of the cases.
Typical of the complex cases heard by the National Deprivation of Liberty Court is Re J (Deprivation of Liberty: Hospital) [2022] where the court considered whether to authorise the continued deprivation of liberty of a 13-year-old girl at a hospital pending her transfer to a bespoke placement.
The girl was subject to an interim care order. Lack of provision for children with complex needs resulted in her being accommodated in a hospital for 3 months. She had no mental or physical health requirement for inpatient treatment and the hospital environment was not suitable for her needs. Her mother was unwilling and unable to accommodate her, a foster placement was not viable, secure accommodation was not suitable and a children's home would not accept her due to her behaviour. The local authority had identified a rented property at which care could be provided and would allow her to continue school. The girl was subject to continual confinement, she did not and could not consent to them and the restrictions were imputable to the state.
The court held that a local authority could place a child in a hospital. However, the court had to be satisfied that it was necessary, proportionate and in the child's best interests for authorisation to be given. There was no alternative place for her and the restrictions amounting to the deprivation of her liberty had been needed to keep her safe while living at the hospital.
A hospital was not a suitable place for a 13-year-old girl who had no need for treatment. However, due to the national lack of resources to accommodate and care for children with complex needs, that appeared to be the only place where she could live until the local authority was able to arrange and have ready the proposed bespoke placement. Remaining at the hospital during the transition to the new placement would afford her some stability at least.
Conclusion
To meet the increased demand to obtain orders authorising the deprivation of liberty of children a National Deprivation of Liberty Court has been established as part of the Family Division of the High Court. The court provides expertise and consistency in ensuring that restrictions placed on children to protect them from significant harm and both necessary and proportionate in the child's best interests.
The Nuffield Family Law Observatory (2023) in its latest analysis of data trends on the cases before the court has highlighted the court's frustration at the lack of suitable provision for children with complex needs, resulting in prolonged placement in hospital and unregistered accommodation.
KEY POINTS
- The National Deprivation of Liberty Court hears cases where children with complex needs and those at risk of significant harm are subject to restrictions that amount to a deprivation of liberty
- This court does not hear adult cases
- Since its introduction some 854 children have been subject to an application for a deprivation of liberty authorisation
- The court provides expertise and consistency in ensuring that restrictions placed on children to protect them from significant harm are both necessary and proportionate and in the child's best interests