Birmingham City Council v D (by His Litigation Friend, the Official Solicitor) (First Respondent) W (Second Respondent)

JurisdictionEngland & Wales
JudgeMr Justice Keehan
Judgment Date21 January 2016
Neutral Citation[2016] EWCOP 8
Docket NumberCase No: COP 12673015
CourtCourt of Protection
Date21 January 2016

[2016] EWCOP 8

COURT OF PROTECTION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Keehan

Case No: COP 12673015

Between:
Irmingham City Council
Applicant
and
D (By His Litigation Friend, the Official Solicitor)
First Respondent
W
Second Respondent

Mr Jonathan Cowen, Miss Victoria Flowers, Miss Anita RaoandMiss Eleanor Sibley (instructed by Birmingham City Council) for the Applicant

Mr Alexander Ruck Keene (instructed by Cartwright King Solicitors) for the First Respondent

Hearing dates: 16 and 17 November 2015

Mr Justice Keehan

Introduction

1

I am concerned with one young person D who was born on 23 April 1999 and he is therefore 16 years of age. In these proceedings D is represented by the Official Solicitor as his Litigation Friend.

2

D's mother is W, the Second Respondent, and his father is M. They both play a very close and important role in D's life. They are loving and dedicated parents. The issues I have to determine relate solely to legal issues based on legal submissions. In those circumstances, neither parent, quite understandably, has been present or represented at this hearing. My ultimate decision will have a bearing on D's legal status but will have no effect on his day to day life.

3

This judgment should be read with the judgment I gave in the case of Trust A v X and A Local Authority [2015] EWHC 922 (Fam) (hereinafter referred to as 'Trust A v X').

Application and Issues

4

The local authority issued this application in the Court of Protection on 23 April 2015. It is conceded that the circumstances in which D currently resides and is educated constitute an objective confinement which satisfies Limb One of Storck v Germany [2006] 43 EHRR 6 in determining whether D is deprived of his liberty.

5

The local authority submits, however, that Limbs 2 and 3 are not satisfied and accordingly D is not deprived of his liberty. Its arguments are essentially based on two grounds namely:

a) D's parents may consent to his confinement, thus that which might otherwise result in a deprivation of liberty, does not; and

b) D resides at his residential unit under the auspices of s20 Children Act 1989 accommodation to which his parents agreed. Therefore his placement and confinement both at the residential unit and his school are not imputable to the state but rather are at the request of, and with the consent of, his parents.

6

The Official Solicitor accepts and agrees that the circumstances of D's confinement satisfy Limb 1 of Storck. He submits, however, that:

a) D's parents cannot consent to his confinement now that he has attained the age of 16 years; and

b) that notwithstanding that D is looked after by the local authority pursuant to s20, the circumstances of his confinement are plainly and clearly imputable to the state via the acts of the local authority. The residential unit and the school D attends are paid for by the authority. Moreover, the local authority took the lead in identifying this establishment and devised and/or approved the regime by which D is cared for in the residential unit and in school.

7

The Official Solicitor goes further and contends that;

a) no parent in any circumstances may consent to the confinement of their child, whatever their age, in circumstances which absent a valid consent would amount to a deprivation of liberty; and

b) on that basis my decision in Trust A v X was wrong insofar as I held that D's parents could consent to his confinement in Hospital B when he was under 16 years of age: see paragraphs 52–66 of that judgment.

8

Whether I accept those submissions or not, I do accept that I should have expressed myself more precisely and felicitously by referring to D's 'confinement' at Hospital B (ie Limb 1 of Storck) rather using the phrase a 'deprivation of liberty' which, of course only arises if all three Limbs of Storck are satisfied (eg paragraphs 52 and 65 of Trust A v X).

9

I am immensely grateful to counsel for the detailed written submissions I have received and for the helpful oral submissions they each made to supplement the former.

Background

10

D was diagnosed with Attention Deficit Hyperactivity Disorder, Asperger's Syndrome and Tourette's Syndrome from a very early age. On admission to Hospital B in October 2013 he was further diagnosed as suffering from a mild learning disability.

11

D's parents struggled for many years to care for him in the family home. He had significant difficulties with social interactions. His behaviour was challenging; he was observed to be physically and verbally aggressive. D would urinate and defecate in inappropriate places. He presented with anxiety and paranoid behaviours. All of this had a marked adverse effect on D's younger brother R. D's prescribed medication had limited effects.

12

In March 2012 D was referred to his local Child and Adolescent Mental Health team. His treating psychiatrist made a referral to Hospital B who agreed to admit D informally for multi disciplinary assessment and treatment.

13

Hospital B provides mental health services to children and young people aged between 12 and 18. D lived within the grounds of the hospital. He attended an on site school on a full time basis.

14

His parents and brother visited him at the unit on a regular basis. D frequently spoke to his parents on the telephone. He enjoyed home visits usually at a weekend for up to six hours but he was supervised at all times.

15

Dr K, D's treating consultant at Hospital B, provided the court with a report in which he set out the restrictions to which D was subjected. In summary the external door to the unit was locked, D was checked on by staff every half an hour or so and he sought out the staff at other times. His school was integral to the unit. If D left the site for relevant activities he was accompanied by staff on a one to one basis. Accordingly he was under constant supervision and control.

16

D was assessed by Dr K as not being 'Gillick' competent to consent to his residence and care arrangement or to any deprivation of liberty.

17

Dr K considered it inappropriate to use the provisions of the Mental Health Act 1983 to place D under section. It was not necessary to detain D in order to treat him.

18

In August 2014 the clinical team led by Dr K agreed that D was fit to be discharged from hospital to a residential placement. There had been considerable delay in identifying a suitable residential unit for D.

19

On 31 March 2015 I handed down judgment in the case of Trust A v X. I found that D's confinement at Hospital B satisfied the objective requirement of Limb 1 of Storck, but I found that in the proper exercise of his parents' parental responsibility for this young person, then aged 15, they could consent to his confinement at Hospital B. Thus I was not satisfied that D was deprived of his liberty.

20

The local authority issued these proceedings in the Court of Protection on 23 April 2015.

21

On 20 May 2015, with the consent of the parties and on the basis of the medical evidence before me, I made declarations that the court had reason to believe that D lacks capacity to litigate these proceedings, to make decisions about his residence and, to make decisions as to his care, including keeping himself safe in the community. I further made orders for the transfer and placement of D from Hospital B to House A residential unit ('House A').

22

D moved into House A at Placement B on 2 June 2015.

23

Placement B is set within its own grounds in the England. In addition to the main house there are 12 self-contained residential units on the site each with its own fenced garden. D resides at House A with three other young people of a similar age. The educational facility D attends is on the Placement B site. He is taught in a class with 4 other young people.

24

The local authority took the lead in finding a suitable alternative placement for D once it had been decided in August 2014 that he was fit to be discharged from Hospital B. As I have already mentioned, there was a considerable delay in identifying a suitable unit. It is not material to the issues I have now to determine to consider the reasons for that delay.

25

In any event by early March 2015 Placement B was identified as a potential suitable placement for D. He was offered a placement there on 15 April. His parents were, I note, "kept fully informed of the placement process in regular review meetings held at [Hospital B]". Further the social worker, HK said in his statement of 18 May 2015 that:

"D has complex needs and it was essential that the local authority proceeded carefully so as to ensure that the right placement was found; that is a placement that the local authority considered would meet his needs and would be acceptable to his parents. A significant amount of work has been required by the local authority in order to ensure that a placement was found for D which the local authority considered was the right placement for him and I believe that, having regard to the matters referred to above, the local authority has proceeded to arrange a new placement for D within a reasonable time-frame."

26

The choice of Placement B, the regime that D would experience when he moved there and the drawing up of his personal care plan were led by the local authority's social work team in consultation with D's treating clinicians and with the staff at Placement B. His parents agreed to the same and recognised that such a placement was in D's welfare best interests.

27

I note that D's placement at Placement B is funded exclusively by the local authority.

28

D's parents agreed to him being accommodated by the local authority pursuant to s20 1989 Act in June 2015.

29

As at Hospital B, D is under constant supervision and control. His life at Placement B, is described as follows:

"D has his own...

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