Deprivation of liberty and children with complex needs: a new specialist court

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.

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.