Newsletter – March 2017

THE AMICUS CHAMBERS NEWSLETTER.

MARCH 2017.

There have been two recent cases conducted by Chambers on behalf of two local authorities, which have highlighted the approach to be taken in relation to public law cases when there is plan for placement of a child who is mentally incapacitated.

It was necessary in preparing those cases to consider a number of recent decisions.

In the case of A Local Authority and D & Others [2015] EWHC 3125 (Fam), Mr Justice Keehan sitting in the High Court had to consider the circumstances of a child, AB who was 14 years of age. At the time of the Judgment, he was living at a children’s home under the auspices of an interim care order. He has been diagnosed as having a moderate sever learning disability and attention deficit hyperactivity disorder for which he was prescribed medication. At the home there were always three staff on duty during the day and two at night for the three residents, including AB. The medication prescribed to him was a sedative which altered his behaviour and was described as a form of chemical restraint. He was not allowed to leave the unit unaccompanied and was closely supervised when out of the unit. The front door is locked at night.

The social worker had assessed AB as not competent to make decisions and that he lacked the mental capacity to do so.

The Guardian commented that due to AB’s vulnerabilities in terms of identifying risk and keeping him safe, the restrictions were necessary and proportionate.

Having considered the legal principles and the Supreme Court decision in Cheshire West, the case of Nielson v Denmark [1988] 11 EHRR 175 and the definition of “free to leave” by Munby J (as he then was) in JE v DE [2007] 2FLR 1150, the Court found that applying those principles to the circumstances of AB’s life at the children’s home, he was deprived of his liberty as opposed to his liberty being merely restricted.

The Judge considered if a child is in the care of a local authority and subject to an interim care order or a care order, may the local authority in the exercise of its parental responsibility (see s.33(3)(a) of the Children Act 1989) consent to what would amount to a deprivation of liberty? His answer was an emphatic no. In taking a child into care and instituting care proceedings the local authority was acting as organ of the state and to permit them to do this would (1) breach Article 5 of The Hague Convention, (2) would not afford the proper safeguards and (3) would not meet the need for a periodic independent that the arrangements made for a child are in his/her best interests.

There were two possible routes to provide the necessary deprivation, (1) the use of s.25 of the Children Act 1989 or (2) the inherent jurisdiction of the High Court. (1) the Judge considered had a punitive quality to it, designed for young people who when looked after by the local authority were likely to abscond and thus suffer significant harm or injure themselves or others. Equally AB’s case did not satisfy the criteria of s.25(1)(a) or (b) and the children’s home was not registered under regulation 3 of the Children’s Secure Accommodation Rules 1991. To have had to move him would be “wholly inimical to his welfare best interests”.

The Court could only grant the local authority permission to invoke the inherent jurisdiction if the provisions of s.100(4) of the Children Act 1989 were satisfied. Namely (a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which ss. (5) applies and (b) there is reasonable cause to believe that if the Court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm. The Court considered the criteria were satisfied and if the Court’s jurisdiction was not exercised AB was likely to suffer significant harm. He made the authorisation initially for 3 months.

In the observation section of the judgment, it was made clear that the issue of whether a child or young person is deprived of his or her liberty is fact specific and that the Cheshire West criteria must be rigorously applied to the individual circumstances of each case. Further, that the local authority should cease to impose such deprivation when the reasons justifying the deprivation of liberty no longer subsist. Authorisation is permissive not prescriptive.

In Re: Daniel X, such an issue came before HHJ Lynn Roberts sitting as a Deputy High Court Judge. The child according to the medical evidence, presented with an autistic disorder at the severe end of the spectrum and also had a learning disability. The plan of the local authority was for him to remain living at Y home, considering that his needs were too great to allow him to be cared for at home. An agreed threshold document was approved and a care order was made.

It was recognised that his associated behaviours put the child and others in danger, he needed to be constantly supervised and physical restrictions were necessary to prevent him leaving or moving freely around the premises. Leave was granted to the Local Authority pursuant to s100 of the Children Act 1989 to invoke the inherent jurisdiction. The possible length of the order depriving the child of his liberty was the subject of some consideration. It was clear that, “any order authorising detention must contain provision for an adequate review at reasonable intervals” (Re PS (Incapacitated or Vulnerable Adult) [2007] 2FLR 1083),

and that “regular reviews by the court are not merely desirable, not merely a matter of good practice; they go, as both the Strasbourg jurisprudence and the domestic case law make clear, to the very legality of what is being done (Re BJ (Incapacitated Adult) [2010] 1 FLR 1373).

It was not sufficient to review matters by way of LAC review process and by the involvement of the IRO because of the need for an independent review.

The Court made the Deprivation of Liberty Order for 1 year. 35 days before the expiry of the order, the local authority were directed to lodge an application to renew the order if it sought to do so, supported by medical evidence that the child still requires that type of accommodation and to include evidence from the social worker about the child’s up to date circumstances, possibly a school report and a report from the IRO that the home was still suitable for him. The parents would then have the opportunity respond in 14 days of being served. If the parents agreed to the order being renewed or didn’t reply the court would consider the application on paper. The court could make the declaration on paper or list it the application for a hearing. The court did not think it necessary for a Guardian to be appointed on issue of the application.

There are other practical considerations. It was pointed out in A Local Authority and D & Others that when a child reaches the age of 16 a child’s deprivation of liberty would fall to the Court of Protection to consider.

When listing the case it will clearly be necessary to ensure that the Judge is a High Court or s.9 Judge.

In one of the local cases the child was 10 years and 8 months at the time of the hearing. He has autism and there are significant difficulties in respect of his diet, his pattern of sleep, his communication skills, his incontinence, his personal hygiene, his ability to keep himself safe and his behaviour. As a result and given his difficulties he requires significant oversight and supervision to keep him safe. The measures necessary amounted to a deprivation of his liberty. A Care Order was made and permission was granted to the Local Authority to invoke the Inherent Jurisdiction of the High Court to deprive the child of his liberty for one year. Any application to renew the permission it was ordered, should be made no later than 35 days before its expiration.

Derek Hall.