The use of accommodation for restricting liberty.
Your freedom to come and go as you wish is very important. It is protected at common law by habeas corpus and the tort of false imprisonment. Article 5 of the ECHR makes it clear that any deprivation of liberty is an infringement of Article 5, but it can be lawful if authorised under one of the exceptions, which are:
- a. the lawful detention of a person after conviction by a competent court;
- b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
- c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
- d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
- e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
- f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
Some difficult issues arise with children, particularly older children, who might want to use their freedom to come and go to do or fail to do things that their adult carers think will harm them. A further complication is how to factor in the wishes of the parents, who have authority over their children, encapsulated in the concept of ‘parental responsibility’ and the right to demand respect for their family lives under Article 8 of the ECHR. In Christian Institute v Lord Advocate  UKSC 51; 2017 SC (UKSC) 29, paras 71 to 74, the Supreme Court recognised the responsibility of parents to bring up their children as they see fit, within limits, as an essential part of respect for family life in a western democracy.
A crucial issue, particularly for younger children is whether restrictions on their liberty fall within normal parental control for a child of this age or not? If they do, they will not fall within the scope of Article 5; but if they go beyond the normal parental control, Article 5 will apply.
Therefore a variety of tensions and different legal mechanisms will exist around any attempt to restrict a child’s freedom, which would not arise if dealing with an adult. The current situation is a confusing mixture of common law, the inherent jurisdiction, Statute and European law.
The situation gets even more complicated once a child is 16. It is clear is that various statutes do treat 16 year olds differently to younger children. For example:
- Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”;
- Section 131(2) of the Mental Health Act 1983 provides that subsections (3) and (4) apply to a child of 16 who has the capacity to consent to arrangements for his own informal admission to hospital for treatment for mental disorder;
- Section 2(5) of the Mental Capacity Act 2005 provides that the powers which may be exercised under that Act in relation to a person who lacks, or is reasonably believed to lack, capacity cannot be exercised in relation to a person under 16.
- Section 9(6) of the Children Act 1989 provides that no court may make a child arrangements, specific issue or prohibited steps order under section 8 of the Act which is to have effect after the child reaches 16 unless the circumstances are exceptional.
There is significant overlap between the jurisdiction of the Court of Protection and the Family Court. Generally if a person is under 18, deprivation of liberty should be dealt with by the Family Court. If a child is over 16 and lacks capacity under section 2 of the Mental Capacity Act, then the Court of Protection is the more appropriate venue. See B v RM MM AM  EWHC 3801 for further consideration about transfer to and from the Court of Protection and Family Court.
This post shall attempt to pick its way through the different approaches of the court, which will depend largely on the age of the child and whether or not he has capacity to consent.
How do you identify a deprivation of liberty?
But first we must be clear by what is meant by ‘deprivation of liberty’. The ‘acid test’ is that someone is under continuous supervision and control and is not permitted to leave. It doesn’t make any difference if the conditions are pleasant or necessary. It is defined by using the Storck criteria as confirmed in 2014 in the case of Cheshire West
- Confinement in a particular restricted place for more than a short period of time
- lack of valid consent
- attribution of responsibility to the State.
Section 25 Children Act 1989 – Secure Accommodation Orders
One lawful way to deprive a child of his liberty is by the use of ‘secure accommodation’ under section 25 of the Children Act 1989 and the Children (Secure Accommodation) Regulations 1991. A secure accommodation order involves a deprivation of liberty within Article 5 of the ECHR but it will not be unlawful if it can be justified under one of the exceptions in Article 5(1), which includes ‘the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority’.
If section 25 doesn’t apply then the courts could rely on the inherent jurisdiction. However, If section 25 applies it must be used. See Re X, Re Y  EWHC.
If the child is detained under section 2 of the Mental Health Act, section 25 doesn’t apply.
A child who is being ‘looked after’ by a local authority under a care order or by being provided with accommodation under section 20 of the Children Act cannot be placed or kept in accommodation which has the purpose of restricting the child’s liberty unless the requirements of section 25 are met.
- that the child has a history of running away (‘absconding’)and is likely to run away from accommodation which isn’t secure; and
- if he runs away, he is likely to suffer significant harm; OR
- if he isn’t in secure accommodation, he is likely to injure himself or someone else.
‘likely’ means a real possibility, a possibility that can’t be ignored when looking at the nature and extent of the harm its feared will come to the child. The courts have made it clear there is no need to define ‘absconding’ beyond its every day meaning – see W (A Child) EWCA Civ 804. Short periods of absences, particularly if the child returns of his own accord, may not satisfy this criterion.
If the local authority apply for a secure accommodation order, the court will have to be satisfied that those requirements exist. If the court agrees the criteria are met then it must make a secure accommodation order and must specify the maximum period for which this will be allowed. Usually a child will already be in secure accommodation when the application is made because the court’s authority is not required for the first 72 hours.
This is a serious application and should only be made when there is no alternative – for example, it should never be used to punish a child for running away or being a nuisance.
Duty to inform parents and to keep secure accommodation under review
Regulation 14 provides:
Where a child to whom section 25 of the Act applies is kept in secure accommodation in a community home and it is intended that an application will be made to a court to keep the child in that accommodation, the local authority which are looking after the child shall if practicable inform of that intention as soon as possible–
(a) his parent,
(b) any person who is not a parent of his but who has parental responsibility for him,
(c) the child’s independent visitor, if one has been appointed, and
(d )any other person who that local authority consider should be informed.
Regulation 15 provides:
Each local authority looking after a child in secure accommodation in a community home shall appoint at least three persons, at least one of whom must not be employed by the local authority by or on behalf of which the child is being looked after, who shall review the keeping of the child in such accommodation for the purposes of securing his welfare within one month of the inception of the placement and then at intervals not exceeding three months where the child continues to be kept in such accommodation.
The age of the child
A child who is under 13 years of age cannot be placed in secure accommodation without the prior approval of the Secretary of State UNLESS the child is 12 and has been arrested by the police – see section 38 of the Police and Criminal Evidence Act (PACE).
Once a child is approaching 16 years old, the situation can get more complicated. If a child is over 16 a secure accommodation order can be made if the child is already the subject of a care order OR accommodated by the LA under section 20(3) where there is a duty to provide accommodation if a failure to provide it would lead to the child’s welfare being seriously prejudiced.
But the court cannot make an order with regard to a child who is already 16 and is being accommodated under section 20(5) (accommodation in any community home in order to safeguard or promote his welfare) but it can make an order if the child isn’t yet 16 even if the child’s 16th birthday will happen whilst he is in secure accommodation.
The court has been prepared to make an order with regard to a 17 year old under the court’s inherent jurisdiction given the extraordinary circumstances of that case. See Re B (Secure Accommodation: Inherent Jurisdiction) 
The judge accepted the submission that the inherent jurisdiction of the High Court is theoretically limitless and in circumstances where the statutory code under section 25 is satisfied in relation to a 17-year old child (with the exception of the requirement that the child is looked after by the local authority), it is open to the court to exercise its inherent jurisdiction to direct that a child be detained in secure accommodation.
How long can an order last?
If there isn’t a court order a child can only be held in secure accommodation for 72 hours every 28 days: see Children (Secure Accommodation) Regulations 1991, reg. 10. If the court makes an order, the first order can be made for an initial maximum period of 3 months and after that for further periods of up to six months (C (SA) R 1991, regs 11 and 12). Time starts running from the date of the order.
Once the order is made, it can’t be discharged unless the order was made incorrectly. If the child’s circumstances change and the local authority think the secure accommodation order is no longer needed the courts have decided that the way forward is to apply for a writ of habeas corpus under RSC Order 54 . If the parents and the local authority disagree about whether or not it is still needed, the parents can make an application for judicial review.
How do you decide if accommodation is ‘secure’?
A place doesn’t have to be specifically designated ‘secure accommodation’ for it to be so. Each case turns on its own facts. The crucial factor is whether or not the child’s liberty is being restricted. This must be the primary purpose of the accommodation. See Re C (Detention: Medical Treatment)  2 FLR 180. If deprivation of liberty is ‘incidental’ then use the inherent jurisdiction.
Accommodation must be approved by the Secretary of State under Reg 3.
How will the child make his wishes known to the court?
Under section 25(6) the court can’t consider making a secure accommodation order if a child is not legally represented in court, unless the child decides not to apply for legal representation.
However, the court should usually appoint a guardian to represent the child under section 41(1) of the Children Act. The guardian will speak to the child and will give instructions to a solicitor; this will allow the court to say that the child is legally represented.
The guardian will recommend to the court what he thinks is in the child’s best interest, but the child’s welfare is NOT the ‘paramount consideration’ in these proceedings.
Rule 12.14 (3) of the Family Procedure Rules 2010 gives the court power to exclude a child who wants to attend court if it is in their interest to do so and they are represented although Rule 12.14(4) requires the court to give the guardian, the child’s solicitor and child, if of sufficient understanding, the opportunity to make representations about the child’s attendance.
When deciding whether or not a child should come to court, the starting point should be an evaluation of the consequences of attending or not attending upon the child’s welfare taking into account the following factors. See Re K (A Child) 
- the age and level of understanding of the child
- nature and strength of the child’s wishes
- the child’s emotional and psychological state
- the impact of influence from others
- the matters to be discussed
- practical and logistical considerations – how far would child have to travel?
- the impact on proceedings – is the child likely to need to be restrained in court? If so that is usually a sufficient ground to refuse to allow the child to attend.
Can an English court make an order to put a child in secure accommodation in Scotland?
A shortage of available secure accommodation in England lead to some children being placed in Scotland. This caused some problems about jurisdiction. Just because an order is lawfully made in England, does not mean it automatically is lawful in Scotland. See the judgment of the President of the Family Division in Re X, Re Y  EWHC 2271 (Fam), para 1.
This problem has now been dealt with by The Children and Social Work Act 2017, Schedule 1 which simply amends section 25 of the Children Act to extend it to Scotland.
The judgement of the Supreme Court in D (A Child)  UKSC 42 (26 September 2019)
This is an important case about the admits and limits of parental responsibility which deserves reading in full. Particularly as the court was split 3-2.
The questions before the Supreme Court in Re D were these
- Is it within the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of Article 5 – the majority of the court said ‘no’.
- What difference, if any, does it make that the child lacks the mental capacity to make the decision for himself? – no difference.
The case concerned D who was no longer a child when these proceedings were heard, but the issues were so important the court wanted to deal with them. D presented with some very challenging behaviours and so in 2013 when he was 14, his parents could no longer cope and he was admitted to hospital for multi disciplinary treatment and assessment.
In 2014, the Hospital Trust issued an application under the inherent jurisdiction for a declaration that it was lawful for the Trust to deprive D of his liberty and that this was in his best interests. In March 2015, Keehan J found that it was “within the zone of parental responsibility” for his parents to consent to this and thus agree to what would otherwise be a deprivation of liberty. Howeveronce he reached 16 he would come under the jurisdiction of the Court of Protection – see : In re D (A Child) (Deprivation of Liberty)  EWHC 922 (Fam);  1 FLR 142.
D then moved to a residential placement which restricted his liberty and the local authority issued proceedings in the Court of Protection when he was 16 years old and argued that parental consent continued to operate to make this lawful. But In January 2016, Keehan J held that the parents could NOT consent now D was 16. Birmingham City Council v D (by his litigation friend, the Official Solicitor)  EWCOP 8;  PTSR 1129.
The local authority appealed – the Court of Appeal agreed, affirming the central principle of the majority of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority  AC 112, that the exercise of parental responsibility comes to an end, not on the child’s attaining a fixed age, but on his attaining “Gillick capacity”.
The Official Solicitor appealed to the Supreme Court on behalf of D, arguing that no one can consent to the confinement of a child who has reached the age of 16 and lacks the capacity to decide for himself. There must be safeguards to ensure that the deprivation is lawful.
Lady Hale identified the crux of the matter in this way at para 39 of the judgment, commenting that the restrictions placed D went beyond such ‘normal parental control’:
Do the restrictions fall within normal parental control for a child of this age or do they not? If they do, they will not fall within the scope of article 5; but if they go beyond the normal parental control, article 5 will apply (subject to the question of whether parental consent negates limb (b) of the Storck criteria, see para 42 below)….The question then arises what difference, if any, does D’s mental disability make?
The answer to the last question – the impact of D’s mental disability – was that it made NO difference. As the decision in Cheshire West made clear was that disabled people were entitled to the same human rights, including the right to liberty, as any other human being. The fact that they had to be subject to control for the best of motives, did not mean that they were not deprived of their liberty. The protection of Article 5 was necessary so there could be an independent check on whether or not the arrangements really were in their best interests.
With regard to whether or not parental consent could over come the difficulties of lack of consent from the child in the Storck criteria, Lady Hale said NO – D’s accommodation did amount to a deprivation of liberty and his parents consent that he stay there did not alter that. It cannot be within the scope of parental responsibly to authorise something so fundamental as a loss of liberty. Lady Hale did not wish to express an opinion on the extent of parental responsibility around other significant issues, such as medical treatment.
Therefore the procedural requirements of Article 5 remained, and in this case were met as D’s placements had been authorised by a High Court Judge. His rights were not in fact violated.
Lady Black raised some important issues about section 25 but these were not determined by the court, rather a ‘marker’ was set down for the future.
The exercise in which we have engaged has, however, been sufficient to persuade us that section 25 is not intended to be widely interpreted, so as to catch all children whose care needs are being met in accommodation where there is a degree of restriction of their liberty, even amounting to a deprivation of liberty. There is much force in the argument that it is upon the accommodation itself that the spotlight should be turned, when determining whether particular accommodation is secure accommodation, rather than upon the attributes of the care of the child in question. This fits with the language used in section 25(1), when read as a whole. It is also consistent with the objective of ensuring that the section is not so widely drawn as to prejudice the local authority’s ability to offer children the care that they need, and it ought to make it more straightforward to apply than would be the case if the issue were dependent upon the features of a child’s individual care regime, so that the child might be found to be in secure accommodation in all manner of settings.
It is a testament to the complexity of this area that while Lady Black and Lady Arden agreed with Lady Hale. Lord Carnwath and Lord Lloyd Jones did not, preferring the view of the Court of Appeal that parents could consent to their 16 year old child being deprived of their liberty. At para 151 Lord Carnwath said this:
Later in [Lady Hale’s] judgment (para 48) she reinforces that view by equating deprivation of liberty with other “fundamental human rights” such as the right to life or freedom from torture. She argues that it would be a “startling proposition” that it lies within the scope of parental responsibility to authorise violation of such rights. I say at once, with respect, that I am not persuaded that such comparisons are fair or helpful. D’s parents were not authorising the state to commit torture or anything comparable to it. They were doing what they could, and what any conscientious parent would do, to advance his best interests by authorising the treatment on which all the authorities were agreed. That this involved a degree of confinement was an incidental but necessary part of that treatment, and no more than that. On the President’s view, with which I agree, they were not “authorising a violation of his rights”, but rather exercising their parental responsibility in a way which ensured that there was no such violation.
- This helpful article from April 2015 by Alex Laing offers a step by step guide for practiioners who are considering whether to apply section 25 or the inherent jurisdiction.
- Alex also considers the circumstances in which a child can be placed in secure accommodation once he/she is 16 years old.
- This article by Belinda Schwehr deals with the law more generally on the deprivation of the liberty of children, examining other statutory justifications for a deprivation of liberty such as the Mental Health Act 1983; the youth remand provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012; or the custodial sentencing provisions of the Power of Criminal Courts (Sentencing) Act 2000.
- Secure placements for children: how local authorities use them. A report from the Department of Education in December 2016.