CGM v Luton Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 23 March 2021 |
| Neutral Citation | [2021] EWHC 709 (Admin) |
| Date | 23 March 2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO-4835-2020 |
[2021] EWHC 709 (Admin)
Mr Justice Mostyn
Case No: CO-4835-2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The claimant was self-represented
Joshua Swirsky (instructed by Luton Council Legal Services) for the defendant
Approved Judgment
In these judicial review proceedings the claimant seeks permission to challenge the defendant's failure to seek from the High Court (a) an authorisation to deprive his daughter NM of her liberty and (b) consequential annual reviews by a judge of her confinement. The defendant denies that NM is deprived of her liberty.
This is my judgment on the permission application having considered the matter on the papers. It is a fuller version of the reasons I gave for my order in the standard form on 22 March 2021.
NM is a 12 year old girl with a diagnosis of autism and Attention Deficit Hyperactivity Disorder. She is described as being high-functioning but extremely vulnerable.
The defendant shares parental responsibility for NM pursuant to a care order made on 17 February 2018. The care plan, approved by the court, was for NM to be looked after at a named school (“the School”). The School is a secure residential school for children with additional complex needs. NM has resided there since 1 April 2018.
The School is described as being a former stately home set within extensive grounds. It is a completely secure compound. Access is via a long driveway blocked by gates, which are secured and monitored. A high fence surrounds the estate and no authorised access is permitted. The claimant compares it to a Category B prison.
NM is not permitted to leave the School, save when she is accompanied by two members of staff. If NM is transported by car, she is taken in a car adapted so that she cannot release the seat belt herself. Staff monitor NM at all times due to her vulnerabilities, even at night or when she is washing. The defendant has complete control over NM's finances. The School searches NM's belongings from time to time; she has restricted access to them, like her iPad, and is not permitted the use of a mobile phone at all. The safety settings on her internet use is set for a child seven years and older rather than 12 years and older. Use of social media is not permitted. Outside mealtimes NM does not have free access to food. Restrictive physical intervention is at times used on NM. In the event that NM were to leave of her own accord, the police would be called to return NM to the School.
The claimant argues that all of the above amounts to a deprivation of NM's liberty contrary to her Article 5 rights.
To be clear, the claimant supports NM being looked after at the School, which he views as being in her best interests. However he seeks for NM to have the same safeguards that other people, who have their liberty deprived, benefit from. It is clear also that he questions the ongoing need for a care order and, at the very least, argues that NM should spend more time with her family. Since NM started living at the School, the defendant has not permitted NM to travel to Ireland to visit her family during half terms and school holidays, as requested by the claimant. Further the claimant has complained that he and his wife, NM's mother, were only permitted to visit NM for two hours on Christmas Day and that they were excluded from NM's end of term award ceremony. In general, he complains that the level of spending time permitted with NM is too little and that this is in breach of NM's and her family's Article 8 rights.
The defendant denies that NM is deprived of her liberty. It argues that NM is very young and therefore the restrictions placed on her are in line with those routinely placed on a child of her biological age. In other words, the objective component required for there to be a deprivation of liberty is missing. While there are periodic LAC reviews there have therefore been no reviews of NM's placement by a judge. The defendant denies that the claimant has standing to bring this claim. Further, insofar as the application relates to spending time between NM and her family the defendant maintains that judicial review is not the appropriate remedy and instead a contact application pursuant to section 34 of the Children Act 1989 should be made to the Family Court.
The legal test of what amounts to a deprivation of liberty is stated in Storck v Germany (2006) 43 EHRR 6. There are three components, summarised by Baroness Hale in Cheshire West and Chester Council v P and another (Equality and Human Rights Commission and others intervening [2014] UKSC 19, [2014] AC 896 at [37]:
“(a) the objective component of confinement in a particular restricted place for a not negligible length of time;
(b) the subjective component of lack of valid consent; and
(c) the attribution of responsibility to the state.”
In Cheshire West, Lord Kerr addressed how component (a), the objective component, is to be judged in the context of disabled children. At [77] to [79] he explained:
“77. The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.
78. All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are — and have to be — applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is — and must remain — a constant feature of their lives, the restriction amounts to a deprivation of liberty.
79. Very young children, of course, because of their youth and dependence on others, have — an objectively ascertainable — curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEG's liberty was not restricted. It is because they can — and must — now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.”
It is clear therefore that the correct comparator is a child of NM's age and maturity who does not share her diagnoses. In Re A-F (Children) [2019] Fam 45, Sir James Munby P at [33] summarised the principle thus:
“…whether a state of affairs which satisfies the “acid test” amounts to a “confinement” for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same “age”, “station”, “familial background” and “relative maturity” who is “free from disability”.'
The test is a matter of law; but whether an individual child does or does not satisfy the test is a matter of fact. In determining the question of fact Sir James Munby P at [43] advanced an indicative rule-of-thumb:
“i) A child aged 10, even if under pretty constant supervision, is unlikely to be “confined” for the purpose of Storck component (a).
ii) A child aged 11, if under constant supervision, may, in...
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