Tag Archives: Article 5 ECHR

The Mental Capacity Act 2005

Care proceedings may involve parents who are said to ‘lack capacity’. In this post we will discuss what that means and what are the implications for the care proceedings.

The Law – the Mental Capacity Act 2005

The Mental Capacity Act came into force in 2007 and provides a statutory framework for people who lack capacity to make decisions for themselves, or who want to prepare for possibly losing their capacity in the future.

It sets out who can take decisions for people who lack capacity, in which situations, and how they should go about this  There is a Code of Practice that needs to be read along side the Act. The Act covers England and Wales and applies to everyone who is over 16 years of age.

You must keep this Act separate from the Mental Health Act 1983 – that Act deals with people who have been diagnosed with a mental  health problem that is so serious they pose a risk to themselves or other people and therefore they need to be detained and treated, even if this is against their will.

The Mental Capacity Act applies to everyone who looks after someone who lacks capacity to make particular decisions for themselves. This includes social workers and doctors, as well as family or professional carers.


Key principles of the MCA

These are set out at section 1 of the Act.

  • Presumption of Capacity. All adults have the right to make decisions for themselves unless it can be shown that they are unable to make them. You can’t assume someone can’t make decisions just because they have a particular disability.
  • Maximising Decision Making Capacity. Everyone should be given all the help and support they need to make a decision before anyone concludes that they cannot make their own decision. For example, some people with learning disabilities find it much easier to understand information that is presented in pictures, rather than lots of words.
  • Right to be Unwise. Making an unwise or eccentric decision doesn’t automatically mean you lack capacity; people are allowed to make decisions that others might think unwise.
  • Best interests. Any actions taken or decisions made on behalf of someone who lacks capacity must be done in their best interests, after considering what is known about their preferences. Try to involve the person who lacks capacity as much as possible.
  • Least Restrictive Option. People who lack capacity should not be restricted unnecessarily; when making decisions for someone else you need to be careful to examine if what you are doing poses the least interference with that person’s freedoms.


The Court of Protection

It was established by section 45 of the MCA.  It can:

  • decide whether a person has capacity to make a particular decision for themselves;
  • make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
  • appoint deputies to make decisions for people lacking capacity to make those decision;
  • remove deputies or attorneys who fail to carry out their duties.

The Court of Protection Rules of 2007 have been amended by new rules which come into force in April and July 2015 – see this blog post by Lucy Series which discusses the important changes they make to issues of transparency and participation.

See further the website www.courtofprotection.com for more information and discussion.


What does ‘lack of capacity’ mean?

An inability to make decisions

Someone is said to lack capacity if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.

There is an interesting post here by suesspicious minds about someone who was said to lack capacity due to his alcoholism; the court heard evidence from a variety of sources and decided that he did have capacity. 

If you ‘lack capacity’, to make a certain decision, this is more serious than just being unable to make up your mind or finding a particular decision difficult; someone who lacks capacity will generally find it hard to understand information, retain it or weigh it up and then communicate their decision to someone else.

Lack of capacity is defined in section 2 of the MCA:

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to—
(a )a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

Section 3 of the MCA sets out what is meant by an inability to make decisions. A person is considered unable to make a decision for himself if he is unable:

  • to understand the information relevant to the decision,
  • to retain that information,
  • to use or weigh that information as part of the process of making the decision, or
  • to communicate his decision (whether by talking, using sign language or any other means).

A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

If a person ‘lacks capacity’ to take part in legal proceedings, that doesn’t necessarily mean they can’t make any decisions at all – it may depend on the seriousness and complexity of the decision before them. For example, a decision about what to have for lunch is much less taxing than a decision about what instructions to give your lawyer in court.

The leading case discussing the test to determine capacity remains Masterman-Lister [2003]. The test of capacity which was identified here has been incorporated into the MCA 2005.


I am told I need an assessment of my capacity – what does this involve?

An assessment of someone’s lack of capacity is covered at para 4.38 of the Code of Practice. This is an important issue which needs to be dealt with quickly as it can have serious consequences for care proceedings, both in terms of necessary assessments and the fairness of the court process. The court should consider issues of capacity at the earliest opportunity. Your lawyer is under an obligation to raise this issue as soon as they have any doubts about your capacity to instruct them.

The court does not require expert evidence from a psychologist or psychiatrist in order to make a decision that you do or do not have capacity, but these experts are often asked to provide an assessment.

However, if it is very clear a person lacks capacity – due to being in a coma for e.g. – then the court is likely to be satisfied by just a letter from the treating doctor.

The Code of Practice considers the necessary practical steps for someone who is assessing capacity . The assessor must understand what the person being assessed is asked to decide about. The assessor must also bear in mind the five principles of the MCA as set out above and start from the presumption that the person has capacity.

The assessor should explain all the information relevant to the decision. The explanation must be in the most appropriate and effective form of communication for that person.

See para 4.49 of the Code of Practice.

  • Check the person’s understanding after a few minutes. The person should be able to give a rough explanation of the information that was explained. There are different methods for people who use non- verbal means of communication (for example, observing behaviour or their ability to recognise objects or pictures).
  • Avoid questions that need only a ‘yes’ or ‘no’ answer (for example, did you understand what I just said?). They are not enough to assess the person’s capacity to make a decision.
  • But there maybe no alternative in cases where there are major communication difficulties. In these cases, check the response by asking questions again in a different way.
  • Skills and behaviour do not necessarily reflect the person’s capacity to make specific decisions. The fact that someone has good social or language skills, polite behaviour or good manners doesn’t necessarily mean they understand the information or are able to weigh it up.
  • Repeating these steps can help confirm the result.

The British Medical Association publish a useful interactive tool to help doctors assess a patient’s capacity.


What follows from an assessment that you lack capacity

Appointment of a ‘litigation friend’

In family proceedings, if a person is found to lack capacity then they become a ‘protected party’. and they will need a  ‘litigation friend’ who will conduct the proceedings on their behalf.

See Part 15 of the Family Procedure RulesPractice Direction 15A and Practice Direction 15B and this guidance.

According to the Practice Direction, a litigation friend must

fairly and competently to conduct proceedings on behalf of a protected party. The litigation friend must have no interest in the proceedings adverse to that of the protected party and all steps and decisions the litigation friend takes in the proceedings must be taken for the benefit of the protected party.

Anyone can be a litigation friend, as long as they can meet the requirements of the rules and Practice Directions. The requirement that you must  not have an interest in the proceedings which might be against the interests of the protected party may mean it is not sensible to have a close family member acting as a litigation friend – see the case of P v Nottingham in 2008, discussed below,  where the mother’s parents and brother had put themselves forward as litigation friends but were also putting themselves forward to care for her child. The court held they should not have been appointed.

The Official Solicitor

The court may invite the Official Solicitor to act as the litigation friend.  The Official Solicitor provides access to the justice system to those who are vulnerable by virtue of their young age or lack of mental capacity.

However, it should be noted that the OS’s department has only about 20 lawyers and 40 caseworkers. It has very little spare capacity. Therefore,  the OS should only be invited if there is no other person suitable or willing to act.

Court of Protection rules

 Part 17 of the Court of Protection 2007 rules which governed the appointment of litigation friends in the Court of Protection has now been replaced by the Court of Protection (Amendment) Rules 2015.

Lucy Series describes the impact of these amendments:

The amended rules now allow a person to be represented by an ‘accredited legal representative’ or even just a ‘representative’ without a litigation friend. An accredited legal representative is defined as ‘a legal representative authorised pursuant to a scheme of accreditation approved by the President to represent persons meeting the definition of “P” in this rule in proceedings before the court’. So presumably the President will shortly announce a scheme of accreditation for certain lawyers who can represent the relevant person without taking instruction from a litigation friend. I would be really interested to see whether this may lead to changes in how they represent the person – for example, will we see a move towards a more adversarial model, like that adopted in the Mental Health Tribunals, where representatives basically argue for what the person wants and not for what they don’t want, rather than arguing for what (in their view) is in the person’s best interests?

Can I still give evidence in my case if I am found to lack capacity?

See para 1.4 and 1.5 of the Practice Direction.

Where the court determines that a party does not have capacity to conduct the proceedings, the court may well also have to determine whether that party is able to give evidence and if so whether ‘special measures’ are required. Expert evidence is also likely to be necessary for the court to make such determinations. However, as in relation to the question of litigation capacity, the court may consider that evidence from a treating clinician who has a good understanding of the party’s difficulties may be sufficient. If the treating clinician is provided with information about the legal framework, the clinician may be able to provide that evidence more readily and more quickly than an expert instructed to give an opinion as to the party’s ability to give evidence.
Where the protected party is able to give evidence, the representative will wish to consider (and ask the expert to consider) the impact on that party of giving evidence. When making a determination as to whether that protected party should give evidence, the court may need to consider whether the impact of giving evidence would be so adverse to their condition that it would not be in that party’s best interests to do so. The representative may put forward an argument on behalf of the protected party that the protected party should not give evidence.


I don’t agree I ‘lack capacity’ – what can I do?

Capacity can fluctuate over the course of proceedings. See para 4.1 of the Practice Direction 15B:

Litigation capacity may be lost or regained during the proceedings as a result of deterioration or improvement in the impairment of, or disturbance in the functioning of, the party’s mind or brain. The necessity for expert evidence or evidence of a treating clinician as to a party’s capacity can therefore arise at any time during the proceedingsThe assessor should give reasons why they believe the person lacks capacity to make the decision, and provide objective evidence to support that belief. The assessor must also show they have applied the principles of the Mental Capacity Act.

Therefore, even if you were assessed at the start of proceedings as lacking capacity, you could argue that the situation has now changed.

If you simply don’t accept the first assessment, It might be possible to get a second opinion from an independent professional or another expert in assessing capacity. Chapter 15 of the Code of Practice offers other suggestions for resolving disagreements over the issue of capacity, such as mediation. But this may not be practicable if you are in care proceedings and decisions have to be made quickly. Your best option may be simply to apply to the court to get another assessment.


Restrictions on freedom of movement under MCA

What are the Mental Capacity Act 2005 Deprivation of Liberty Safeguards?

An important question is whether or not living arrangements made for someone who is mentally incapacitated amount to a ‘deprivation of liberty’. If they do, that deprivation has to be authorised.

The Deprivation of Liberty Safeguards (DoLs) set out in the MCA apply to anyone in a care home or hospital.  These provide an independent check on whether or not these arrangements are made in the best interests of that person.  If the person is living somewhere other than a hospital or care home, the Court of Protection must authorise that placement.

As Lady Hale said in the Cheshire West case (which we discuss below):

It is merely a recognition that human rights are for everyone, including the most disabled members of our community and that those rights include the same right to liberty as everyone else.

DoLs were introduced by the MCA after the UK was found to be in breach of Article 5 of the ECHR in 2004.  Article 5 protects people’s right not to be deprived of their liberty unless this is due to a small number of limited circumstances, such as being convicted of a crime.

The safeguards involve:

  • an independent assessments of a person’s capacity to consent to care arrangements and consideration of what is in their best interests.
  • those being assessed are entitled to assistance from a representative, an independent advocate and non-means tested legal aid to appeal against their detention in the Court of Protection.


What does ‘deprivation of liberty’ mean?

EDIT – The Government on 14th March 2018  published its response to the Law Commission’s Mental Capacity and Deprivation of Liberty report. The headline is that the Government “agree[s] in principle that the current DoLS system should be replaced as a matter of pressing urgency,” and that it will legislate in due course. Before the introduction of any new system, the Government has said that it will “need to consider carefully the detail of these proposals carefully and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.”

The circumstances in which someone can be said to be ‘deprived’ of their liberty have caused much discussion and debate, particularly when considering people who would end up with restrictions placed on their freedoms wherever they went, to stop them hurting themselves.

This issue finally got before the Supreme Court in 2014 in the case of Cheshire West. The court decided that the essential questions they needed to ask were:

  • Is the person subject to continuous supervision and control?
  • Is the person free to leave?

It was NOT relevant to the issue of whether or not someone had been deprived of their liberty to say that they did not object or they were living in a relatively ‘normal’ placement. As Lady Hale said in paragraph 46 of her judgement in Cheshire West:

…But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.

For a different view about the philosophical arguments that underpin our understanding of what makes a ‘deprivation of liberty’ see the judgment of Mostyn J in Rochdale MBC v KW [2014] discussed here at the Mental Capacity Law and Policy blog. The Judge commented at paragraph 7 of his judgment that he found it impossible:

…to conceive that the best interests arrangement for Katherine, in her own home, provided by an independent contractor, but devised and paid for by Rochdale and CCG, amounts to a deprivation of liberty within Article 5. If her family had money and had devised and paid for the very same arrangement this could not be a situation of deprivation of liberty. But because they are devised and paid for by organs of the state they are said so to be, and the whole panoply of authorisation and review required by Article 5 (and its explications) is brought into play. In my opinion this is arbitrary, arguably irrational, and a league away from the intentions of the framers of the Convention.

At paragraph 17 he set out his fundamental disagreement with the majority of the Supreme Court:

It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a case where an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5.

Mostyn J remains bound by the decision of the Supreme Court. However, The Law Commission are currently reviewing this area of law around deprivation of liberty and hope to report by 2017. The report will consider how deprivation of liberty should be authorised and supervised in hospitals, care homes and community settings, where it is possible that Article 5 rights would otherwise be infringed. This will include considering the legislation underpinning DoLS in its entirety. 


Further reading




Secure Accommodation Orders

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 the ancient remedy of  “habeas corpus” translated from Latin as ‘you have the body’. This was used as early as the 13th Century. A writ of habeas corpus is a request to the court to order someone who has restrained another to produce that person at a designated time and place so that the court can determine if this person is lawfully restrained.

False imprisonment is a ‘tort’ (a civil offence).

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 [2016] 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 [2010] 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?

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.


The use of the ‘inherent jurisdiction’

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. It has been recognised by the courts that this is not a ‘straightforward’ statutory provision. See below for further discussion of section 25.

If section 25 doesn’t apply then the courts could rely on the inherent jurisdiction which is in theory a ‘limitless’ power of the High Court to make decisions if there is an apparent ‘gap’ in the statute law.

However, If section 25 applies it must be used as it provides statutory safeguards for the child.  See Re X, Re Y [2016] EWHC. 

The case of Wakefield Metropolitan District Council & Anor v DN & Anor [2019] EWHC 2306 (Fam). Mr Justice Cobb provided a clear overview of how the inherent jurisdiction is used to authorise a deprivation of liberty of a vulnerable adult.

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) [2013]

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.


Section 25 Children Act 1989 – Secure Accommodation Orders

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 are set out above.

Wales now has a separate regime for secure accommodation under s.119 of the Social Services andWellbeing (Wales) Act 2014 (“SSW(W) 2014”), although the provisions are substantially the same as under s.25 of the Children Act 1989.

If the child is detained under section 2 of the Mental Health Act, section 25 doesn’t apply.

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. The court confirmed that this was an action of ‘last resort’ in Re B [2019], discussed below.

A further difficulty is that it is clear that for some time now there has been a shortage of accommodation which is designated as ‘secure’ to meet the necessary statutory requirements.

In the case of B (Secure Accommodation Order) [2019] EWCA Civ 2025, the court was very concerned at this continuing situation where the lack of designated secure accommodation meant that the court was increasingly being asked to use its inherent jurisdiction to make it lawful to deprive a child of their liberty.

The court took a wide ranging review of available case law and considered submissions from the Association of Lawyers for children. The court considered four important and over lapping questions

  1. What is the meaning of “secure accommodation” in s.25? – para 48: A straightforward construction of the words of s.25 leads to the conclusion that “secure accommodation” means nothing more or less than accommodation provided for the purpose of restricting liberty. But (para 60) while some types of secure accommodation will be readily recognisable as such, others will not. In some cases, it will not be easy to say whether the accommodation is or is not “secure”.
  2. What are the relevant criteria for making a secure accommodation order under s.25? – Para 61: At first sight, it might appear that the criteria that are “relevant” to the court’s decision are merely the conditions in s.25(1). On closer examination, however, that is plainly not the whole answer. S.25(3) does not simply require the court to determine whether the conditions in s.25(1)(a) or (b) are satisfied, and s.25(4) does not oblige the court to make the order if it determines that one or other of those conditions is satisfied. Plainly there are other “relevant criteria” which must be satisfied before an order must be made. These include (1) whether the child is being“looked after” by a local authority (or alternatively comes under one of the other categories of children identified in Regulation 7); (2) whether the accommodation proposed by the local authority is “secure accommodation” in the sense already discussed; (3) whether, if the local authority is proposing to place the child in a secure children’s home, the accommodation has been approved by the Secretary of State for that use, and (4) whether, if the child is aged under 13, the placement of that specific child has been approved by the Secretary of State.
  3. What part does the evaluation of welfare play in the court’s decision? -para 72: In my judgment, the “displacement of the court’s welfare role” as required by the decision in Re M extends only to the displacement of the paramountcy principle. It does not require the court to abdicate responsibility for evaluating impact of the proposed placement on the child’s welfare. On the contrary, as Butler-Sloss LJ said, the child’svwelfare is plainly of great importance in deciding whether or not an order should be made. The local authority and the court must each consider whether the proposedvplacement would safeguard and promote the child’s welfare. In some cases, the child’vswelfare needs will be served by a period in secure accommodation, particularly if supported by a comprehensive therapeutic programme. In other cases, the child’svwelfare will not be promoted by such a placement.
  4. When considering an application for an order under s.25, is the court obliged, under Articles 5 and 8 of the ECHR, to carry out an evaluation of proportionality? – para 88: In my judgment, an evaluation of proportionality must be carried out by the local authority before applying for an order under s.25 and by the court before granting such an order. Proportionality is one of the “relevant criteria” which must be satisfied before an order is made.

Questions court must ask before making a secure accommodation order

Having considered these issues of principle, the court set out the necessary questions to ask. See para 98:

(1) Is the child being “looked after” by a local authority, or, alternatively, doeshe or she fall within one of the other categories specified in regulation 7?

(2) Is the accommodation where the local authority proposes to place the child“secure accommodation”, i.e. is it designed for or have as its primary purpose the restriction of liberty?

(3) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?

(4) If the local authority is proposing to place the child in a secure children’shome in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children’s home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?

(5) Does the proposed order safeguard and promote the child’s welfare?

(6) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?

(In the rare circumstances of the child being aged under 13, Regulation 4 of the 1991 Regulations require that the placement must also be approved by the Secretary of State.)

If the relevant criteria are satisfied, s.25(4) obliges the court to make an order under the section authorising the child to be kept in secure accommodation and specifying the maximum period for which he or she may be so kept …. If the court determining an application under s.25 is obliged to conduct an evaluation of welfare and an assessment of proportionality, and in doing so applies the principle that a secure accommodation order should always be a last resort, the court will be under an obligation to consider alternative arrangements.

EDIT – Further guidance from the President of the Family Division February 2020

I am offering this guidance by way of email to judges hearing applications under the inherent jurisdiction to authorise the restriction or deprivation of liberty of a young person in Family Proceedings.

It has become apparent that there may be some confusion with regard to these sensitive cases following the Court of Appeal decision in November in Re B [2019] EWCA Civ 2025

In the course of the leading judgment of Baker LJ, at paragraphs 46 to 60, consideration is given to the definition of ‘secure accommodation’ within the statutory scheme under CA 1989, s 25. Baker LJ concludes that the definition of ‘secure accommodation’ applies to any ‘accommodation designed for, or having as its primary purpose, the restriction of liberty’.

On the facts of Re B, Baker LJ held that the accommodation in which the young person had been living [‘N House’], which was neither a registered children’s home, nor approved by the Secretary of State as secure accommodation, was nevertheless ‘secure accommodation’ as it was accommodation designed for, or having as its primary purpose, the restriction of liberty:

“Although N House was not designed as secure accommodation, it became secure accommodation for B within the meaning of s.25(1) because of the use to which it was put in her case.” [para 107]

It is, however, clear that the above conclusion (that a particular unregistered and unapproved unit is ‘secure accommodation’ within the s 25 definition) does not mean that an application to place a child in such a unit must be determined via a s 25 secure accommodation application. The reason for this lies in paragraph 98 of the judgment in Re B which sets out the relevant criteria for a s 25 order, each of which must be satisfied:
“98. Having analysed the roles played by welfare and proportionality in the decision-making process under s.25, I conclude that, in determining whether the “relevant criteria” under s.25(3) and (4) are satisfied, a court must ask the following questions.

(1) Is the child being “looked after” by a local authority, or, alternatively, does he or she fall within one of the other categories specified in regulation 7?

(2) Is the accommodation where the local authority proposes to place the child “secure accommodation”, i.e. is it designed for or have as its primary purpose the restriction of liberty?

(3) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?

(4) If the local authority is proposing to place the child in a secure children’s home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children’s home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?

(5) Does the proposed order safeguard and promote the child’s welfare?

(6) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?
(In the rare circumstances of the child being aged under 13, Regulation 4 of the 1991 Regulations require that the placement must also be approved by the Secretary of State.)”
[emphasis added by AMcF]

Item (4) is the clincher.

It follows that, although an unregistered and/or unapproved secure placement may come within the definition of ‘secure accommodation’ within s 25, that accommodation cannot satisfy item (4) in the ‘relevant criteria’ with the result that a s 25 order cannot be made to authorise placement in that unit. In such a case any court approval would need to be sought under the inherent jurisdiction.

The reason, in Re B, for the court to focus on the definition and its application to ‘N House’ was not because authorisation of ‘N House’ should have been considered within a s 25 secure accommodation application, but because it was necessary, on the facts of Re B, to determine whether ‘N House’ was ‘secure accommodation’ or was ‘any other description of accommodation’ which the young person ‘has a history of absconding and is likely to abscond from’ [s 25(1)(a)(i)] – item (3) of the relevant criteria.

I hope that the above assists in clarifying this issue.

The bottom line is that Re B does NOT signal a need for the court to use s 25 to process applications for DOL in a unit which is unapproved by the Secretary of State as ‘secure accommodation’. Such applications should continue to be considered under the inherent jurisdiction. If the s 25 criteria are met, then, of course, s 25 should be used.

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 discussion above.

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 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) [2011]

  • 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 [2016] 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) [2019] 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) [2015] EWHC 922 (Fam); [2016] 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) [2016] EWCOP 8; [2016] 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 [1986] 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. These questions were considered by the court in  B (Secure Accommodation Order) [2019] EWCA Civ 2025, discussed above.

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.

Further Reading