I was recently asked to consider a case involving a 16 year old child in local authority care, following fears of child sexual exploitation. The local authority wanted to apply to the court for permission to put ‘spyware’ on the child’s mobile phone, in order to monitor any conversations the child was having with those who posed a risk of harm. The local authority made an application for permission under the inherent jurisdiction to deprive the child of liberty. The court raised a question mark about the appropriateness of this application – was it really a deprivation of liberty?
The questions raised here have broader applicability to on going tension between ‘paternalism’ (protect the child from his foolish decisions ) or ‘autonomy’ (allow the child the freedom to make decisions). I find it interesting that there is such intense scrutiny of a child’s access to a mobile phone but rather less of a child’s assertion that they have ‘changed sex’ and want access to cross sex hormones. Children aged 16 and over pose particular problems in this debate, but it is one we must keep on having.
The local authority wanted permission to restrict a 16 year old child’s access to the internet via a mobile phone or other device and in particular asked the court to give it permission to remove the phone and monitor the child’s access to the internet by installing ‘spyware’ that would log texts and messages. This was done with aim of protecting the child from further sexual exploitation and it was argued this was proportionate and necessary. The local authority suggested that these restrictions be in place for a relatively short period of time, and they could then be reviewed.
I identified the following questions to the court
Is removal or monitoring of a child’s mobile phone a deprivation of liberty?
If it is, is it lawful? i.e. a proportionate and necessary response in the best interests of the child or does the child have capacity to consent and does consent?
If this isn’t a deprivation of liberty, is it rather a a breach of article 8 ECHR (right to privacy)
If so, is that breach lawful?
If the proposed restrictions are neither a deprivation of liberty nor breach of article 8 ECHR, then the local authority does not require the authorisation of the court to exercise parental responsibility for the child. However, given the child’s age and the nature of the restrictions sought, it was sensible to put this matter before the court.
Use of mobile phones by teenagers in local authority care
A survey from Ofcom in 2014 showed that in the UK, 88% of sixteen-to-twenty-four-year-olds owned a smartphone. It seems unlikely that this percentage has fallen in intervening years. The use of mobile phones with internet access is now commonplace and most teenagers will have and use one. Although there are obvious risks inherent in the use of mobile devices that can connect to the internet, such as making children more vulnerable to sexual exploitation, they can be a very useful tool to allow a child to maintain contact with friends and family.
The use of mobile devices and the internet are a normal part of everyday life for children and young people, including those in care.
A balanced view of use of devices and the internet by children and young people in care is to appreciate both opportunities and risks associated with use.
There are a number of factors known to increase the vulnerability of children and young people online. However, in considering vulnerability online, this should be done holistically, taking account of a child or young person’s life in general at a given time, and with awareness of both protective and risk factors.
There is a need for practitioners to move towards a more expansive and child-centred approach with a focus on relationships. This should encompass an appreciation of stepfamily and biological family, and the maintenance of relationships with a wider variety of individuals that reflect the world of the child or young person in care.
As the child is subject to a care order, the local authority ‘shares’ PR with the parents and may override the parents’ wishes if it is ‘necessary’ to safeguard or promote the child’s welfare. The parents in this case did not object to the proposals but the child was refusing to discuss the matter with social workers. However, parents cannot consent to their child’s deprivation of liberty. A child can, if they have capacity, but also that consent may be withdrawn.
For a child under 16 it is submitted that the removal of a mobile device, restriction on its use or monitoring of conversations on it, are likely to be well within the ‘zone of parental control’ and do not require the local authority to seek the court’s permission. The UK Council for Child Internet Safety (UKCCIS) is clear that parental controls on internet usage is accepted and necessary – such as requiring phones to be turned off at school or surrendered during the night.
Some local authorities have set out advice for foster carers around removal/restriction of mobile phones which suggests that certainly for younger children, the local authority as corporate parent does not need to seek the court’s permission to exercise control over a child in care’s mobile phone use. For example, see the guidance from East Riding which considers the removal of a mobile phone as a decision of ‘last resort’
… taken when other measures have failed. This decision should itself be reviewed regularly and the phone returned as soon as possible. Any decision to remove the mobile phone for a long period (more than a few days) should be endorsed by the Safeguarding/LAC/Pathway Team Manager, with confirmation for the reasons in writing to the young person and a copy to the carer.
Not only is removal of a mobile phone considered a serious matter, the older a child gets, the less likely it will be that this is a reasonable exercise of parental responsibility. The House of Lords in Gillickapproved the following dictum of Lord Denning MR
… the legal right of a parent to the custody of a child … is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.
Once children reach 16, they are held by various statutes as able to make their own decisions across a range of issues. These are set out in the judgment of Lady Hale at para 26 of D (A Child) (Rev2)  UKSC 42 (26 September 2019). 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”.
Therefore, it is important to consider what is the lawful basis for depriving or restricting a 16-year old’s access to a mobile phone or the internet. If this is outside the ‘zone of parental control’ then it is submitted that it is desirable for the local authority to seek authorisation from the court, rather than run a risk of being found to have unlawfully breached either Article 5 or Article 8 of the ECHR.
Article 5 ECHR provides that everyone has a right to liberty and security. Distinguishing between a ‘deprivation’ of liberty and a mere restriction is one of ‘degree or intensity’ and not one of nature or substance.The question whether a person’s liberty is restricted is determined by comparing the extent of that person’s actual freedom with someone of similar age and situation whose freedom is not limited. All children should be subject to restraint upon their freedom to do as they wish, but these restraints necessarily decrease as the children grow.
Many cases involving a deprivation of liberty involve restriction on physical movement, such as refusing to allow a person to leave premises without supervision. Such cases are governed by thethree limbed test set out in Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96, para 71, and 74 emphasising physical confinement.
However, deprivation of liberty is not restricted solely to limits set on physical movement. Lord Kerr in Cheshire West described ‘liberty’ as “the state or condition of being free from external constraint”
The Mental Capacity Act (2005) Deprivation of Liberty Code of Practice states that denying social contacts constitutes restraint and therefore is a significant factor as to whether the care and treatment amounts to a deprivation of liberty. The importance of social contact for a child is reflected in article 37 of the UNCRC “…. every child deprived of liberty… shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.”
In the case of HC (A Minor Deprivation of Liberty)  EWHC 2961 (Fam) the court considered a variety of issues beyond mere physical confinement which had the cumulative effect of depriving a child of his liberty. For example, at para 40 the judge commented on the issues of ‘supervision, support and control’.
Linked to the question of freedom of movement is the question of supervision. A typical 13-year-old will certainly be supervised or controlled in certain formal or dangerous settings. For example, at school, much of the time is supervised to a greater (e.g., in the classroom) or lesser (e.g., during break-time) extent, and a risky sport or activity will generally be conducted under close adult supervision. However, a typical 13-year-old will also enjoy significant periods of time without any active supervision whatever. In particular, it is intrinsic to the lives of teenagers that they are able to spend ever-increasing periods of time speaking to and interacting with their friends and peers, and without this being subjected to adult scrutiny. Equally, it is very much a part of a teenager’s life that they are able to spend time alone, without the presence of an adult or any other person, whenever they like (and their routine allows).
The Judge considered further the consequences of restricted access to social media and the internet.
Most 13-year-olds have access to social media and the internet. For many, this represents a very significant element of their burgeoning independence, sense of self and social life. Of course, for most, the use of social media is important because of and to the extent of that young person having both an immediate network of friends and possibly a secondary network of online acquaintances or ‘followers’ using any particular medium or platform. To a greater or lesser degree, most 13-year-olds will be subjected at least to parental attempts to monitor and to restrict their use of social media and the internet. Close and constant monitoring of all use would, in my view, be unusual
This child was 16 years old and therefore it was highly unlikely a court would agree that it was within the ‘zone of parental authority’ to deny her access to her mobile phone for more than a short period of time or to monitor her use of it by way of ‘spyware’. (If a parent is paying for the mobile phone, it is probably lawful to refuse to keep paying for it!) and thus the proposed restrictions may amount to a deprivation of liberty, for which the court’s authorisation must be sought. It not a deprivation of liberty, this could be an unlawful breach of Article 8, but if its neither then the local authority will be reassured that its actions are within the lawful boundaries of its exercise of parental responsibility.
UPDATE 23 November 2022
When this matter came before the court, the Judge did not agree that restrictions on use of mobile phone, or adding ‘spyware’ was a deprivation of liberty (which required the court’s authorisation) but it was a breach of Article 8. However, this breach was lawful as it was necessary and proportionate to protect the health and morals of the child. The Judge did not think the local authority required authorisation from the court as this situation was within their parental responsibility.
I think there is probably room for further argument about all of this, certainly on the deprivation of liberty point but for the time being, local authorities should consider carefully such restrictions, make sure that the reasons for them are articulated and impose restrictions for the shortest time necessary. This will protect against any future assertions of an unlawful breach and possible action under the Human Rights Act 1998.
More general discussion of depriving children of their liberty and secure accommodation https://childprotectionresource.online/depriving-children-of-their-liberty/
This post began as a talk I gave for White Paper Conferences in February 2021 looking at the complex issues, both legal and practical, around deprivation of liberty orders for children of all ages. I will continue to update it.
The importance of freedom of movement.
Your freedom to come and go as you wish is very important and has been a protected right for centuries. From the ancient common law remedy of ‘habeus corpus’ we now look to Article 5 of the ECHR – everyone has the right to liberty and security of person. Being deprived of your liberty can only be lawful:
if you consent to it, or someone else is allowed to consent on your behalf, or
there is an existing legal framework that allows it, or
you apply to the court for a declaration that its lawful.
Deprivation of liberty means 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 criteria set out in the case of Storck v Germany43 EHRR 96, as confirmed in 2014 in the case of Cheshire West and Chester Council v P  UKSC 19,  MHLO 16
Confinement in a particular restricted place for more than a short period of time
lack of valid consent
attribution of responsibility to the State.
An obvious example of lawful deprivation of liberty is sending someone to prison after conviction of a criminal offence.
The current legal situation regarding depriving children of their liberty is a complex mixture of common law, the inherent jurisdiction, statute and European law. Although a child is defined as a person between 0-18, children aged 16 and over are treated differently to younger children.
We need to look carefully at the reasons behind any decision to restrict a child’s liberty in order to identify the correct route to ensure that any detention is lawful. Sadly for family practitioners, The Children Act 1989 does not specifically address mental disorder, does not provide specific powers to enforce treatment, and does not provide specific safeguards for the rights of the detained patient. Family lawyers therefore may have to come out of their comfort zones when dealing with a case where a child needs to be deprived of their liberty. It may be that the family court is not the right place for such decisions to be made.
Why might a child be deprived of their liberty?
There are a variety of reasons why a decision is made to deprive a child of liberty.
Consent and exercise of parental responsibility.
In some circumstances, you can consent to your own confinement. Regarding children, parents may exercise ‘parental responsibility’ which means they are able to offer their own consent when a child cannot. The younger the child the less likely it is that the acceptable ‘zone of parental authority’ will be controversial – for example, when parents consent to a five year old receiving medical treatment. However, it has long been accepted by the courts that parental responsibility is a ‘dwindling right’ that diminishes as the child grows in age and understanding. Parental responsibility must also be exercised in the best interest of the child.
Once a child reaches the age of 16, they are treated differently to younger children – for example, they are presumed to be able to offer consent to medical treatment as if they were an adult. But what if a 16 year old does not have the mental capacity to make decisions? Can a parent then consent to a deprivation of liberty on their behalf? The short answer is no.
The Supreme Court in D (A Child)  UKSC 42 (26 September 2019) held that a parent could not consent to deprivation of liberty once a child was 16, even if the child lacked capacity. Logically this should extend to younger children and require careful examination of what falls within the normal ‘zone of parental control’. The key question was Do the restrictions fall within normal parental control for a child of this age or do they not? If they did not, Article 5 was engaged and the parent could not consent on the child’s behalf.
However, as an indication of the complexity in this area and reasonable scope for disagreement, the court was split 3:2. The majority of those in support agreed that deprivation of liberty involved a fundamental human right and it could never be within the boundary of acceptable exercise of parental responsibility to deny a child a fundamental human right. Further, the court restated the principle set out in Cheshire West, that the living arrangements of the mentally disabled had to be compared with those of people who did not have the disabilities which they had. They were entitled to the same human rights, including the right to liberty, as any other human being. Even if they were deprived of their liberty for the best possible motives, they were still entitled to the protection of Article 5 so it could be independently ascertained that the arrangements were in fact in their best interests.
But, its interesting to consider one of the minority judgments. 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.
So it looks as if there is scope for that argument to be potentially revived.
Necessary protection for the mentally incapacitated
The Mental Capacity Act 2005 applies only to children aged 16 or over. If a child over 16 lacks capacity to make decisions about their care or where they live, the Court of Protection can make these decisions for them (see section 16 (2) (a) MCA). This can allow, under sections 4A(3) and (4), that any one can deprive the child of his or her liberty if that is done to give effect to an order made under section 16 (2)(a). As Charles J made clear in Re NRA & Ors  EWCOP 59 at para 41, this is a ‘best interests test’ so any ‘care package’ that imposes a deprivation of liberty is unlikely to be in a child’s best interests unless it represents the least restrictive interference that is appropriate.
The Court of Protection jurisdiction runs concurrently with the inherent jurisdiction, as confirmed in Re D by Lady Black.
The Mental Capacity Amendment Act 2019 inserted a new Schedule to the MCA to set out a new administrative scheme for the authorisation of deprivation of liberty in order to enable care or treatment of a person who can’t consent. Under Schedule AA1, a ‘responsible body’ will be able to authorise arrangements giving rise to a deprivation of a person’s liberty in any setting, if satisfied that the necessary conditions are met, including that the arrangements are necessary and proportionate to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person. This is now in force – see Part 2 Practice Direction 11A. In essence, it allows judges to decide non-contentious applications ‘on the papers’. It is emphatically not a ‘rubber stamping’ exercise but allows for the ‘judicial antennae’ to be alert to any particular issues of concern in the case.
Once an authorisation has been given, there are a number of safeguards put in place for the person which include regular reviews of the authorisation by the responsible body or care home and the right to challenge the authorisation before the Court of Protection.
But note what the court have said abut the ‘streamlined’ procedure for 16/17 year olds in KL (A Minor: deprivation of liberty) EWCOP 24 . The court noted that the ‘streamlined’ procedure had not been developed with 16/7 year olds in mind, who are at a critical stage of their development and at the unavoidable cusp of transition from children’s services to adults’ services. Such cases are likely to require greater scrutiny from the court and local authorities would be unlikely to face criticism if they asked the court to make the orders and declarations needed at an attended hearing, where the child was represented.
There may be further changes ahead – as the Judge discussed in KL above, the ‘streamlined’ procedure may be replaced by a new scheme of ‘Liberty Protection Safeguards’ also introduced in the 2019 Act. There is no date yet for the implementation of the LPS but if they come into effect they will apply to people aged 16 or over and will not be restricted to arrangements in a care home or hospital. If LPS are implemented this will render the ‘streamlined’ process redundant and non-contentious authorisation of deprivation of liberty will become an administrative procedure. The court will retain a role to determine any challenge to the suitability of this procedure but at the moment it is not clear which court would carry out this function – there is a Working Group of the Court of Protection considering all this. Watch this space!
Detention by the police
See section 38 of Police and Criminal Evidence Act 1984. The custody officer must secure that any arrested child is moved to local authority accommodation unless it is not practical to do so, or once the child has reached the age of 12, that no secure accommodation is available and keeping him in other local authority accommodation would not be adequate to protect the public from serious harm.
Secure accommodation under the Children Act 1989
Use of section 25 of the Children Act 1989 and the accompanying regulations is a lawful way of depriving a child of liberty but it has proved not to be a ‘straightforward’ statutory provision. The inherent jurisdiction can be used to ‘fill the gaps’ but the courts are very clear – If section 25 applies it must be used as it provides statutory safeguards for the child. See Re X, Re Y  EWHC.
This route has to be endorsed by court order; the consent of any party is not relevant – Re T (A child) (Secure Accommodation Order)  EWCA Civ 2136.
The Regulations set out various safeguards for the child, such as ensuring that parents are informed and that the deprivation of liberty is regularly reviewed.
In essence, section 25 operates to make deprivation of liberty lawful if the child is subject to a care order or is ‘looked after’ by the LA under section 20 of the Children Act 1989 and:
the child has a history of absconding and is likely to abscond from any other description of accommodation; and
if the child absconds they are likely to suffer significant harm; or
if not placed in secure accommodation, the child is likely to injure themselves or another person.
Relevance of the child’s age
A child younger than 13 can only be placed in secure accommodation if this is authorised by the Secretary of State under Regulation 4 – unless the child is 12 and has been arrested by the police.
If the child is 16 or older 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.
If a child is over 16, a SAO can be made for children who are ‘looked after’ by way of a care order or under section 20(3) of the CA 1989. Under s 20(3) every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.
An alternative route could be to rely on the court’s inherent jurisdiction which is theoretically limitless, but cannot be used to circumvent section 100 of the CA, i.e. to put a child in the care of the LA or provide accommodation for the child. Therefore, as made clear in A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction)  EWHC 1384 (Fam) the inherent jurisdiction could not be used to place a 17 year old who was not subject to a care order nor looked after by the LA.
Scotland and Wales
Wales now has a separate regime for secure accommodation under s.119 of the Social Services and Wellbeing (Wales) Act 2014 (“SSW(W) 2014”), although the provisions are substantially the same as under s.25 of the Children Act 1989.
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 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 courts have confirmed it is an order of ‘last resort’
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. 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) 
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.
Issues to consider when applying for a secure accommodation order
There have been many practical difficulties in applications for secure accommodation and the courts have had to look very carefully about what ‘secure accommodation’ means, the relevant criteria under section 25 that justify the order, to what extent the child’s welfare is considered in the balance and the over arching demands of proportionality.
The complex interplay of various statutory provisions must then be seen in the context of the nationwide shortage of accommodation which is designated as ‘secure’ to meet the necessary statutory requirements.
The case of B (Secure Accommodation Order)  EWCA Civ 2025, tackled these questions head on. The court was very concerned that 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 and set out the questions that a court must ask and answer before making a secure accommodation order. See para 98.
(1) Is the child being “looked after” by a local authority under section 20 of the Children Act 1989 or, alternatively, does the child fall within one of the other categories specified in regulation 7 (which are children accommodated by health authorities, NHS trusts, local educational authorities and children in residential care homes or nursing homes).
(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?
However, this did not end the confusion of many practitioners and required further guidance from the President of the Family Division in February 2020. This guidance focused on the discussion by the Court of Appeal about the definition of ‘secure accommodation’ which was found to be “any ‘accommodation designed for, or having as its primary purpose, the restriction of liberty’”
However, the President was clear that this does not mean that an application to place a child in such a unit must be determined via a s 25 secure accommodation application and he referred back to the questions asked and answered in the Court of Appeal judgment, stating that question 4 was 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 bottom line is that Re B does NOT signal a need for the court to use s 25 to process applications for deprivation of liberty 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.
The inherent jurisdiction
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.
The court has found there is jurisdiction 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.
However, A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction)  EWHC 1384 (Fam) points out there are problems when there is no care order as the inherent jurisdiction used when a child is 17 would have the effect of ‘grant[ing] authority to the local authority to accommodate a child where the local authority would not otherwise be able to do so under the statutory scheme’
The court considered that Re B ought to be treated with caution.
First, the requirements of s 100(2) do not appear to have been the subject of detailed argument before the court. Second, whilst the court appears to have entertained doubts about whether the child could be said to be accommodated at  to , and to have perceived the significance of an answer in the negative, no final conclusion appears to have been reached by the court on that issue. Third, and importantly, before coming to its decision the court does not appear to have been referred to the decision of the Court of Appeal in Re E (A Child). Within this context, I am satisfied that there are reasons to doubt that Re B (Secure Accommodation: Inherent Jurisdiction)(No 1) was correctly decided
In re T (A Child) (Secure Accommodation)  EWCA Civ 2136, the court was clear that it is fundamentally unsatisfactory that many young people were being placed in secure accommodation outside the statutory scheme in units that by definition had not been approved by the secretary of state as secure children’s homes.
The appellant, T, was a 15-year-old child who was subject to a care order. The local authority wished to place T in secure accommodation but there were no places available in any registered secure children’s homes. So the LA applied to the High Court for orders under its inherent jurisdiction authorising T’s placement in non-statutory accommodation. T had consented to the restrictions on her liberty in the placements sought and submitted that the orders restricting her liberty were unnecessary. The Court of Appeal found that consent was not a relevant issue for the exercise of the inherent jurisdiction. T appealed to the Supreme Court, wishing to be recognised as capable of consenting in law.
The Supreme Court was asked to consider the following issues:
In circumstances where insufficient places are available in registered secure children’s homes, is the exercise of the inherent jurisdiction to authorise a child’s placement in unregistered secure accommodation lawful?
If it is, what legal test should the courts apply when determining whether to exercise the inherent jurisdiction?
Is a child’s consent to the confinement of any relevance when determining whether to exercise the inherent jurisdiction?
JULY 30th 2021 – Judgment handed down
The Supreme Court dismissed the appeal and determined that use of the inherent jurisdiction IS permissible but expressed grave concerns about its use to fill gaps in the child protection system, due to lack of resources. The child’s consent or lack of it did not determine the decision about whether a deprivation of liberty was permissible. Placement of a child in unregistered or unregulated accommodation must be a temporary solution, only if no other alternative available and reflects a ‘scandalous lack’ of provision. The full judgment is here
Children’s homes and unregulated placements
The difficulties and tensions in relying on the inherent jurisdiction in this area, is the extent to which this may undermine a statutory or regulatory framework to make sure that accommodation provided for children by the state is fit for purpose and that the child’s rights are protected. As a general rule, the more an area of law is controlled by statute and regulations, the more extreme the circumstances must be to justify the use of the inherent jurisdiction.
The Supreme Court noted the distinctions between ‘secure accommodation’ ‘children’s homes’ and ‘unregulated placements’
Secure accommodation is a secure children’s home, designed and developed as such and approved by the Secretary of State for such use (the court comment at para 134 that it is ‘hoped’ no such homes would be in use without approval of the Secretary of State but that it was theoretically possible). This involves a ‘locked setting’ with a ‘custodial complexion’ – i.e. locked doors and windows, perimeter fences, high quality digital CCTV.
A children’s home is defined as a place that provides care and accommodation wholly or mainly for children (excluding hospitals and most schools). Under the Care Standards Act 2000 and accompanying regulations, children’s homes must be registered and it can be a criminal offence under section 11 of the Act to run an unregistered children’s home
The Supreme Court found that this does not relieve the court from authorising placing a child in an unregistered placement if a failure to do so risks breach article 2 of the ECHR (the right to life) where there must be absolutely no alternative and the child or someone else is likely to come to grave harm if the court does not act (para 145). This must not be seen as the court authorising a criminal act. Practice Guidance issued by the President of the Family Division in 2019 made it clear that if a child is placed in an unregistered children’s home then steps must be taken immediately to secure registration and keep the court informed of the registration process, which the court must oversee. If registration is refused and the home continues to operate, this does raise a risk of criminal prosecution.
An unregulated placement is one that is NOT a children’s home, as it doesn’t meet the definition of providing accommodation wholly or mainly for children – for example, a caravan or outward bound centre. The court was doubtful that such places could ever be suitable to deprive a child of liberty.
Regulation 27 of the Care Standard Act Registration Regulations 2010 puts a duty on a LA who is placing a child in unregulated accommodation to be satisfied that the accommodation is suitable. A new Reg 27A comes into force in September 2021 which limits the circumstances in which the LA can place a child under 16 in unregulated accommodation.
Section 22C(6)(d) deals with placement of children by the LA when they cannot be safely or practically placed with a parent or other person with PR. The LA then have to find a placement that it considers ‘the most appropriate’. This can be with a friend or relative, a foster carer, a registered children’s home OR subject to section 22D ‘placement in accordance with other arrangements which comply with any regulations made for the purposes of this section’.
Section 22D confirms that a LA can make arrangements to place a child in an ‘appropriate placement’ when it is necessary and required as a matter of urgency.
Regulation 27A provides that a LA may only place a child under 16 in accommodation in England ‘in accordance with’ other arrangements under section 22C(6)(d) of the Children Act 1989 where the accommodation is in a
a care home, defined by section 105(1) of the Children Act 1989 as the same definition as the Care Standards Act – an establishment is therefore a care home if it provides accommodation and nursing/personal care for persons who are or have been ill, who have or have had a mental disorder, who are disabled or infirm and who are or have been dependent on alcohol or drugs
a hospital (defined by section 275(1) of National Health Service Act 2006
a residential family centre as defined in section 4(2) of Care Standards Act
A school, defined by section 4 of the Education Act 1996
a holiday scheme for disabled children, as defined in Reg 2(1) of the Residential Holiday Schemes for Disabled Children (England) Regulations 2013
To summarise; the court will need to know, if a child can’t be placed with family or foster carers:
is the proposed placement is a children’s home – which must be registered or immediately applying for registration
OR one of the establishments set out above in Regulation 27A for a child under 16
OR if no children’s home or regulation 27A placement is available for a child under 16, if its urgent and necessary then the court may authorise a placement outside the regulations, in order not to be in breach of article 2 ECHR (right to life).
However, it is clear that no family court can override the operation of the criminal law so it remains to be seen what kind of risk of criminal prosecution would be faced by those operating unregulated placements. Hopefully a defence of necessity would be available. It is therefore very important that LA follow the Supreme Court guidance about what evidence the court needs to authorise an unregulated placement under the inherent jurisdiction.
See paras 155 and 172: the court must have evidence about
If the placement is a children’s home, is it registered? If not registered, application must be made without delay and the court will oversee this process. If registration is refused but child remains in the placement then risk of criminal prosecution is more likely.
the provider of the service has confirmed it can meet the child’s needs
the steps the LA are taking to assure itself that the premises and those who work there can give safe and suitable care
the proposed regime
justification of why proposed regime is necessary and proportionate
the child’s views
Lord Stephens says at para 178:
I agree with Lady Black that recourse to the inherent jurisdiction in the fact of this scandalous lack of provision should be a temporary measure… I add my name to the list of judges who have called attention to this issue which is a scandal containing all the ingredients for a tragedy
See also the case of Tameside MBC v L (Unavailability of Regulated Therapeutic Placement)  EWHC 1814 (Fam) where the court decided that it remains open to the High Court to use the inherent jurisdiction to authorise the deprivation of liberty of a child under 16, where the child will be living in a placement which is outside the statutory or regulatory scheme, provided that everyone followed the President’s Guidance of November 2019 entitled Placements in unregistered children’s homes in England or unregistered care home services in Wales and the addendum thereto dated December 2020.
The court set out the relevant principles to be applied in such cases:
It remains open to the High Court to authorise under its inherent jurisdiction the deprivation of liberty of a child under the age of 16 where the placement in which the restrictions that are the subject of that authorisation will be applied is prohibited by the terms of the Care Planning, Placement and Case Review (England) Regulations 2010 as amended.
In deciding whether to grant a declaration authorising the deprivation of liberty, the existence or absence of conditions of imperative necessity will fall to be considered in the context of the best interests analysis that the court is required to undertake when determining the application for a declaration on the particular facts of the case.
Whilst each case will turn on its own facts, the absence of conditions of imperative necessity will make it difficult for the court to conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child under the age of 16 in an unregulated placement is in that child’s best interests in circumstances where the regulations render such a placement unlawful.
It is not appropriate to define what may constitute imperative considerations of necessity. Again, each case must be decided on its own facts.
The court must ensure the rigorous application of the terms of the President’s Guidance, which will include the need to monitor the progress of the application for registration in accordance with the Guidance. Where registration is not achieved, the court must rigorously review its continued approval of the child’s placement in an unregistered home. Ofsted should be notified immediately of the placement. Ofsted is then able to take immediate steps under the regulatory regime.
The Judge said
However, I can observe that, in the experience of this court, the prohibition on placing children under the age of 16 in unregulated accommodation contained in the amended statutory regime is not coming into force on 9 September 2021 in the context of local authorities choosing to utilise such placements for vulnerable children in great need. Rather, it is coming into force in the context of local authorities having no choice but to employ such unregulated provision due to the well-recognised acute lack of appropriate provision.
Exercise of the inherent jurisdiction if a placement is in Scotland
The placing local authority will need to make application to the Scottish Court of Session within six weeks of the placement starting under the ‘Nobile Officium’ procedure, which will enable the English order to be approved by the Scottish courts. These applications appear to proceed without opposition but the LA will probably need to instruct a firm of solicitors in Scotland to make the application.
So what happens if a child under 16 is placed in an unregulated placement but there is no issue of deprivation of liberty?
I think this is an interesting and important point and at some time soon, the court is going to have to grapple with it head on. I had to deal with this issue in a recent case and gave the following advice to the local authority
The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 prohibit placing a child under 16 in an unregulated or unregistered placement.
The courts have directed a great deal of energy and attention to those cases where an unregulated/unregistered placement for a child under 16 involved a deprivation of liberty (DoL), deciding that the court may authorise the DoL using the inherent jurisdiction (IJ) but this does not operate as a defence to any criminal proceedings that then arise because of the unlawfulness of the placement itself.
The courts have been asked to consider the application of the IJ more widely, but have refused. I note the reasons given in Tameside; the parties had insufficient time to prepare their arguments and the wider issue did not need to be determined in that particular case.
An issue arose in these present proceedings of a child who was too young to be subject to a DoL. At his young age, restriction of his liberty to safeguard him is within ‘zone of parental authority’ and does not require court authorisation.
This child was placed in an unregulated and hence unlawful placement. The court was asked to authorise this placement pursuant to the IJ and this was refused on the basis that the case law did not support this. The court suggested that urgent application was made to the High Court if the local authority wished to pursue that argument. The local authority did not consider it proportionate to do so, given that the unlawful placement would be ending soon.
The local authority is acting unlawfully in placing a child under 16 in such a placement. There is no ambiguity about this. The will of Parliament is clear. The reasons behind the law are also clear. We must be able to trust that placements for vulnerable and traumatised children are safe and well ordered.
However, the court is willing to make a care order even when the order sought is underpinned by an unlawful placement.
I think this raises doubt as to the legality of the care order itself. A care order should not be made to achieve an unlawful end. If the care order is made because in reality there is no other option but to keep the child safe, even though by so doing the will or Parliament is subverted, then this needs formal recognition by the court, using the IJ to authorise what the local authority is doing.
This ensures that the proper focus is kept on the decision to effectively ‘endorse’ an unlawful placement. I appreciate it cannot be offered as a ‘defence’ to any subsequent criminal or regulatory proceedings, but I suggest that the necessary analysis which underpins any operation of the IJ would be powerful evidence to advance as a reason of public policy why a prosecution should not proceed.
I am firmly of the view that by refusing to consider the exercise of the IJ in a case of this nature, this risks
the safety of the child
the integrity of the court process and respect for the rule of law
making the local authority and other organisations more vulnerable to legal action
The Tameside case
MacDonald J in Tameside MBC  EWHC 2472 (Fam) sets out a number of broad and general principles regarding the IJ which ought to be raised in cases of this nature.
The Secretary of State conceded [para 4] that where it is necessary to place a child in a particular place in order to prevent a breach of Art 2 or 3 rights, the local authority has a power, and possibly a duty, to place the child there. There is a ‘positive operational duty’ to protect life [para 66].
Where an area is ‘populated by intense statutory regulation’ the IJ should only be used in cases where there is a high degree of necessity [para 65]
The court must identify the legislative intent to exclude the IJ and should be slow to hold that an inherent power has been abrogated or restricted by Parliament [para 70]
The IJ has ‘seminal importance’ in respect to children [para 69], playing ‘an essential role in meeting the need as a matter of public policy for children to be properly safeguarded’.
As recognised by Lady Black in the Supreme Court [para 77] it is ‘unthinkable’ that the High Court could not use its prerogative powers to protect a child where otherwise the child is at risk of significant harm
Local authorities are not choosing to break the law, but have no other choice. There are simply not enough secure, residential or foster placements for children who have no where else to safely be [para 93].
In short, I do not understand why the High and Supreme Courts are willing to grapple so minutely with issues of deprivation of liberty in unregulated or unregistered placements, but are not willing to grapple with the issue of the placements itself. The court is thus prepared to make a care order which is underpinned by an unlawful placement. A care order is also a draconian order, which breaches article 8 rights. I appreciate that the local authority did not consider it proportionate in this case to make further representations to the High Court and I do not disagree with that position. But I am sadly confident that this issue will not be restricted to this one case and it will at some point soon have to be taken head on.
Refusal to make a deprivation of liberty order
In An NHS Trust v ST (Refusal of Deprivation of Liberty Order)  EWHC 719 (Fam) the court refused to authorise further deprivation of liberty for a 14 year old who ended up in hospital not due to any medical need but because her family could no longer cope with her violent behaviour and frequent absconding. She was subject to 4:1 supervision by staff on five day rolling contracts which meant she was unsettled and afraid by frequent changes of staff which led to further deterioration in her behaviour. She was admitted to hospital in February 2022 but no application was made to authorise the deprivation of her liberty until March 2022. The court found the placement in hospital was ‘brutal and abusive’ and offered not a single positive for the child – there was no plan for educational provision, no ‘exit plan’. The court refused to authorise continuing deprivation of liberty at the hospital, commenting
it is deeply uncomfortable to refuse authorisation and to contemplate future uncertainties that will now pertain for ST. However, ST is now a looked after child and the local authority must find her an alternative placement pursuant to its statutory duty to provide accommodation for her and to safeguard and promote her welfare whilst in its care, under Part III of the Children Act 1989.
The local authority then provided a bespoke placement for ST and applied for authorisation to deprive her of liberty in that placement.
Report from the Nuffield Family Observatory February 2022 summarising what we know about children and young people deprived of their liberty across welfare, youth justice and mental health settings in England and Wales from national administrative data and recent research studies.
AB (A Child : human rights)  EWFC B100 (01 April 2021) A case where a 13 year old was unlawfully deprived of their liberty in a residential unit
June 2023 Research from the Nuffield Foundation Legal outcomes of cases at the National Deprivation of Liberty Court – serious concerns raised about the number of unregulated placements and the severity of the degree of restrictions on children.
REVISED PRACTICE GUIDANCE ON THE COURT’S APPROACH TO UNREGISTERED PLACEMENTS
This Guidance replaces the 2019 Practice Guidance: Placements in unregistered children’s homes in England or unregistered care home services in Wales, and the 2020 Addendum.
Those documents set out Guidance in respect of the registration and regulation structure applicable for residential care facilities for children and young persons. As is well known, the number of applications for Deprivation of Liberty orders has grown very significantly in recent years and a significant number of orders are made in respect of placements which are not registered under the relevant statutory regimes.
The 2019 Guidance sets out the steps that the judges were encouraged to take in respect of establishing whether a placement was registered, and if not, in the process towards registration. This included at paragraph 19 the Court providing that an application for registration should be submitted within 7 days of the Order being made and then further oversight of the process by the Court.
This process places very considerable burdens on the Court system, but more importantly, is not part of the Court’s functions. Ofsted and CIW are the regulatory bodies, with statutory powers as to oversight of children’s homes, including where a child is placed in an unregistered home.
It is not for the Court to become a regulatory body or the overseer of the regulatory process. The Court’s role in deprivation of liberty applications, is to exercise its inherent jurisdiction to ensure that any deprivation of liberty is not itself unlawful, whether as an unlawful detention under the common law, or a breach of Article 5 of the ECHR. That is the extent of the Court’s powers, and the Court’s role should not go beyond those powers.
The Court of Appeal in Re A Mother v Derby City Council  EWCA Civ 1867 held that the inherent jurisdiction may be used to authorise a deprivation of liberty in an unregistered children’s home, so long as the requirements set out by the Supreme Court in Re T are met.
The withdrawal of the 2019 Guidance does not mean that there are not usually great benefits for the child or young person in being placed in a registered rather than unregistered placement. The regulatory regime provides very considerable safeguards for the child. This revised Guidance does not detract from that principle. However, the Court should restrict its considerations and orders to its own functions.
The Courts when considering a DoL application should enquire into whether the proposed placement is registered or unregistered. If it is unregistered it should enquire as to why the local authority considers an unregistered placement is in the best interests of the child.
The Court may order the local authority to inform Ofsted/CIW within 7 days if it is placing a child in an unregistered placement.
Guidance issued by Sir Andrew McFarlane President of the Family Division September 2023
Revised National Listing Protocol for Applications that seek Deprivation of Liberty Orders Relating to Children under the Inherent JurisdictionNATIONAL DoL LIST (‘NDL’) October 2023(Replacing the National DoL Court)INTRODUCTION
Following the conclusion of the initial pilot scheme in July 2023 and the extensive consultation with judges and other stakeholders which followed, the organisation and listing of DoL orders relating to children under the inherent jurisdiction is being revised. The National DoL Court will no longer operate under that title. In future, all initial applications will be dealt with as part of the National DoL List (“NDL”) which will continue to be overseen as part of the work of the Family Division. As from 2 October 2023, all C66 applications seeking orders to deprive any child of their liberty (‘DoL orders’) shall continue to be issued centrally in the Royal Courts of Justice via the following email address: ([email protected]). The C66 application must state (with brief reasons in support) whether the application needs to be heard in A – 4 hours; B – 24 hours; C – 3 days; or D – 5 days.
Experience over the last 12 months has shown that Fridays are particularly difficult days for the Listing Team at the RCJ. Every effort must be made to avoid issuing urgent applications on a Friday. Unless the matter is one of exceptional urgency, first applications for a DoL order must be made between Monday and Thursday. Renewals or extensions of existing orders can, and must, be made in a timely manner. This should not present local authorities with any difficulty, as it will be known well in advance when the renewal or extension will be required.
A fee of £183 is payable on submission of the application. Payment should be made by fee account (PBA). If this is not possible and payment is to be made by another method, the applicant must contact the RCJ Fees Office, [email protected] for a card payment.
Applications listed in the NDL will be dealt with by a NDL judge who will be either a Judge of the Family Division or a s.9 Deputy Judge of the High Court. The current system for inviting s.9 judges to sit at the RCJ for 5 or 10 day slots to deal with applications in the NDL will continue as before. It is important work, and I am grateful to all our volunteers for the time and effort which goes into these sittings.
ALLOCATION 5.Basic model
All first applications will be listed in the RCJ in the NDL before a NDL judge. This will be the default position unless the local authority is requesting an immediate transfer out to the local Family Court for the first hearing, and it has confirmed to the NDL administrative team in the RCJ that a s.9 judge is available and willing to deal with the matter within 24 hours or such shorter period as may be required for the first hearing.
The NDL judge will make the first order and fix the review date.
The expectation will be that, where there are, or will be, parallel public law proceedings concerning the same child/young person and/or where there has been prior judicial involvement at a local level, the case will be sent back to the local court for further reviews. This should ensure a much greater level of judicial continuity than is achieved presently where specific permission is required to release a case back to the local court of origin. In effect, the presumption will be that local Family Courts are better placed to deal with the continuation and/or regulation of the terms of a DoL order which affects a child or young person who is the subject of ongoing care or related proceedings.
When fixing the first review date, the NDL judge sitting in the RCJ must bear in mind that the public law proceedings which are, or will be, ongoing in the local court may not be listed before a s.9 judge for the ICO/FHDRA hearing. It is essential that there is prior liaison between the local authority seeking the DoL order and the local court listings officer. Experience has shown that, without such communication, local courts can find themselves in difficulty if they are required to list a scheduled review before the DFJ or another s.9 judge in circumstances where the parallel public law proceedings are listed before a DJ or non-ticketed CJ. The local authority will be expected to inform the NDL judge for the purposes of the first hearing that there will be a s.9 judge available to review the DoL order when the case returns to the local court.
What the LA needs to do when issuing the application and in any event prior to the first hearing in the RCJ/NDL
All efforts must be made to make the application in a timely manner.
It is critical that the local authority is ready for the case to be heard within the time frame stipulated in the initial C66 application. This includes the availability of both counsel (or another legal representative with appropriate rights of audience) and an electronic bundle.
The electronic bundle must be sent to the RCJ by 12 noon the day before the hearing unless the case falls into the exceptional category of cases which require a hearing within 4 hours. The bundle should include the originating application, a draft order, (where possible) position statements, and any local authority evidence relied on.
The local authority’s statement must cover –
the child’s background;
whether there are related care proceedings – ongoing, to be issued or completed;
details of the proposed placement including background to both provider and property, staffing, training and whether regulated or unregulated;
CAMHS or other NHS involvement and services;
proposed contact arrangements.
Particularly complex cases should be referred by the NDL judge to the relevant Family Presider for allocation locally.
6. CASE MANAGEMENTRole of the s.9 NDL judge at the first hearing in the RCJ
The judge must:
consider whether the order sought amounts to a deprivation of liberty within the meaning of Article 5 ECHR;
consider the extent to which the restrictions sought are necessary and proportionate in relation to the perceived risks to the child or others;
consider the nature of the placement and its suitability to meet the needs of the child concerned. The provision of ongoing education is crucial. It will only be in exceptional circumstances that a child will be subject to a DoLs order without education.
Where the application is being made on an urgent basis on short notice in circumstances where the local authority has not yet identified a suitable longer term placement for the child, the judge must give careful consideration to the conditions under which the child’s liberty will be restricted in the short term pending an urgent review hearing.
If the short-term placement is unregulated, the revised guidance issued by the PFD in September 2023 must be followed:
Any initial directions given at the first hearing in the RCJ may include the following matters:
directions for the listing of any urgent hearing on transfer back to the local court including the provision of notice to other persons or parties to ongoing care proceedings;
the filing of further evidence;
joinder of the child as a party to the proceedings allocated to a Children’s Guardian in the local area where the child lives;
whether there are any particular reasons why the proceedings should remain in the RCJ for the next review hearing (for example the unavailability of a s.9 judge in the local court if the next review is urgent).
Interrelationship with the Court of Protection 7. If the child or young person is 16 or 17 years old and there is reason to believe they may lack capacity and would be likely to be transferred to the Court of Protection at the age of 18 years, then the court should transfer the case to the Court of Protection in accordance with the guidelines. The draft order made at the first hearing in the RCJ (“the first order”) 8. The draft order should cover –
the scope of the DoL restrictions;
the name/identity of the placement;
any specific requirements or pre-conditions (e.g. one female member of staff to be on site at all times);
notification to Ofsted if placement is unregulated;
appointment of Guardian;
review / next hearing and before whom? (i.e. where possible the s.9 judge to whom the case has been/will be allocated in the local court should be identified in the first directions order).
Transfer of proceedings 9. The NDL administrative team in the RCJ will, on receipt of the approved first order, deal with the arrangements for transferring the DoL file to the designated local court together with a copy of the sealed first order. Liaison between the RCJ and the local court 10. Once an application has been issued in Form C66, and following transfer back to the local court, there is a designated route for urgent communication between the local court and the NDL administrative team in the RCJ:- Email: [email protected]Telephone: 0207 947 6335 11. Where the s.9 judge dealing with the initial hearing at the RCJ considers that there are particular issues or difficulties with the case which may warrant departure from this Listing Protocol, the judge shall consult with either Mrs Justice Roberts, the Family Division Lead DoL judge, or the relevant Family Presider or the Urgent Applications Judge. Sir Andrew McFarlane President of the Family Division & Head of Family Justice September 2023
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.
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.
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. 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.
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.
For discussion of the role of the OS and also judicial reaction to John Hemming’s allegations of corruption in the family justice system, see P v Nottingham CC. This case went all the way to the European Court – which dismissed complaints that the mother’s Article 8 and 6 rights had been breached by the appointment of the OS.
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.
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  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.
The Mental Capacity Law and Policy blog maintained by barrister Alex Ruck Keene, aims to promote better, clearer thinking amongst lawyers, policy-makers and professionals as to the operation of the Act.
Mental Health Law online is an iternet resource on mental health law in England & Wales, primarily for mental health practitioners, to which anyone can contribute.