D (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Sir James Munby |
| Judgment Date | 31 October 2017 |
| Neutral Citation | [2017] EWCA Civ 1695 |
| Docket Number | Case No: B4/2016/1257 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 October 2017 |
[2017] EWCA Civ 1695
Sir James Munby PRESIDENT OF THE COURT OF PROTECTION
Lord Justice David Richards
and
Lord Justice Irwin
Case No: B4/2016/1257
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
Mr Justice KEEHAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jonathan Cowen, Ms Anita RaoandMs Eleanor Sibley (instructed by the local authority) for the appellant Birmingham City Council
Mr Henry Setright QC, Mr Alexander Ruck KeeneandMs Anna Bicarregui (instructed by Cartwright King) for D's litigation friend the Official Solicitor
Ms Victoria Butler-Cole (instructed by the Commission) for the intervener The Equality and Human Rights Commission
Hearing dates: 8–9 February 2017
Judgment Approved
Sir James Munby, President of the Court of Protection:
This is an appeal from an order of Keehan J sitting in the Court of Protection dated 15 March 2016, following a judgment handed down on 21 January 2016: Birmingham City Council v D [2016] EWCOP 8, [2016] PTSR 1129. Permission to appeal was granted by McFarlane LJ on 14 June 2016. The proceedings related to D, who was born on 23 April 1999, and was therefore 16 years old when the matter was heard by Keehan J in November 2015. Similar issues in relation to D had been before Keehan J in the Family Division earlier in 2015 when D was 15 years old, judgment (which was not appealed) having been handed down on 31 March 2015: Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam), [2016] 1 FLR 142. In each case, the essential question was whether D was being deprived of his liberty within the meaning of and for the purposes of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The framework within which Keehan J had to decide both Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam), [2016] 1 FLR 142, and the present case, Birmingham City Council v D [2016] EWCOP 8, [2016] PTSR 1129, and within which the issues arising in this appeal fall to be considered, is the analysis of Article 5 set out by the Strasbourg court in Storck v Germany (2005) 43 EHRR 96, paras 74, 89, repeated in Stanev v Bulgaria (2012) 55 EHRR 696, paras 117, 120, and helpfully summarised in the Supreme Court by Baroness Hale of Richmond DPSC in Surrey County Council v P and others (Equality and Human Rights Commission and others intervening), Cheshire West and Chester Council v P and another (Same intervening) [2014] UKSC 19, [2014] AC 896 ( Cheshire West), para 37:
"… what is the essential character of a deprivation of liberty? … three components can be derived from Storck …, confirmed in Stanev …, as follows: (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. Components (b) and (c) are not in issue here, but component (a) is."
I shall refer, by way of shorthand, to these three components as Storck components (a), (b) and (c); sometimes, as we shall see, they are referred to as Storck limbs (1), (2) and (3).
Terminological imprecision has, unhappily, bedevilled much of the recent domestic jurisprudence on Article 5. In this judgment I shall use the phrase "deprivation of liberty" to describe the state of affairs where all three components of Storck are satisfied, that is, where there is a deprivation of liberty within the meaning of Article 5(1) which therefore engages the State's obligations under Articles 5(2)–(4). I shall, in contrast, use the word "confinement" to describe the state of affairs referred to in Storck component (a).
It is also important to remember that a "deprivation of liberty" within the meaning of Article 5 has to be distinguished from a restriction on liberty of movement governed by Article 2 of Protocol No 4.
The facts
I shall have to elaborate some of this in due course, but the essential facts can be summarised quite briefly. I take the following account from Keehan J ( Birmingham City Council v D [2016] EWCOP 8, [2016] PTSR 1129, paras 10–13). D, as I have said, was born on 23 April 1999. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Asperger's syndrome and Tourette's syndrome from a very early age. On admission to Hospital B (see below) he was further diagnosed as suffering from a mild learning disability. 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. He would urinate and defecate in inappropriate places. He presented with anxiety and paranoid behaviours. His prescribed medication had limited effects.
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. Hospital B provides mental health services to children and young people aged between 12 and 18. D was admitted to it in October 2013. He lived within the grounds of the hospital and attended an on-site school on a full-time basis. The regime at Hospital B was described by Keehan J in some detail ( Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam), [2016] 1 FLR 142, paras 17–18). In summary, to quote Keehan J's description ( Birmingham City Council v D [2016] EWCOP 8, [2016] PTSR 1129, para 15):
"… 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."
The matter came before Keehan J on 9 March 2015; he gave judgment on 31 March 2015. D at that time was still 15 years old. In the light of expert evidence, Keehan J proceeded on the basis that D was not ' Gillick' competent: Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam), [2016] 1 FLR 142, paras 19, 48. The issues which fell for decision arose in relation to Storck components (a) and (b). Keehan J's conclusions (paras 65–66) were as follows:
"65 I am satisfied that the circumstances in which D is accommodated would amount to a deprivation of liberty 1 but for his parents' consent to his placement there.
66 I am satisfied that, on the particular facts of this case, the consent of D's parents to his placement at Hospital B, with all of the restrictions placed upon his life there, falls within the 'zone of parental responsibility'. In the exercise of their
parental responsibility for D, I am satisfied they have and are able to consent to his placement."
He declined (paras 69–70) to express any views as to what the position would be if D moved to a proposed new placement or once he reached the age of 16.
On 23 April 2015, D's sixteenth birthday, the local authority issued proceedings in the Court of Protection. On 20 May 2015, Keehan J, having made declarations that the court had reason to believe that D lacked capacity to litigate these proceedings and to make decisions about his residence and as to his care, including keeping himself safe in the community, made orders for the transfer of D from Hospital B to a residential unit, House A at Placement B. D moved there on 2 June 2015.
Keehan J described the involvement of the local authority and of D's parents as follows ( Birmingham City Council v D [2016] EWCOP 8, [2016] PTSR 1129, paras 24–28):
"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 …
25 … His parents were, I note, "kept fully informed of the placement process in regular review meetings held at [Hospital B]" …
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 section 20 of the Children Act 1989 in June 2015."
Keehan J described Placement B and D's life there as follows ( Birmingham City Council v D [2016] EWCOP 8, [2016] PTSR 1129, paras 23, 29):
"23 Placement B is set within its own grounds in 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 four other young people.
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 bedroom. All external doors are locked and D is not allowed to leave the premises unless it is for a planned activity.
"D receives one-to-one support throughout his waking day, and at night, the ratio of staff to students is 2:1. He is not initially allowed unaccompanied access to the community.
"D attends school every weekday from 8.45 am to 2.00 pm. He then eats his lunch on return to House A. He will then get changed and partake in leisure activities. Currently every Thursday afternoon D attends swimming and will eat his dinner outside of House A with staff.
"House A has all entrances and exits to the building locked by staff....
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