A Local Authority v MD (mother) and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2018 |
| Neutral Citation | [2018] EWFC 47 |
| Date | 2018 |
| Court | Family Court |
Care – Deprivation of liberty – Interim care order – Confinement – Complete supervision or control – Comparable child – Appropriate boundaries and sanctions applicable to comparable child – Staff ratio – Reasonable and effective parental authority.
Human Rights – Deprivation of liberty – Interim care order – Confinement – Complete supervision or control – Comparable child – Appropriate boundaries and sanctions applicable to comparable child – Staff ratio – Reasonable and effective parental authority.
The proceedings involved a 14-year-old girl, described as appearing younger than her chronological age, who had suffered a damaged and disrupted early childhood, leaving her with a wide range of complex therapeutic needs. Her parents accepted that they could not currently meet those needs. The local authority had applied for a care order and obtained an interim care order. However, it proved difficult to establish her in a placement; eventually she was accommodated by the authority in a residential unit in Scotland (her twelfth placement). This proved relatively successful and she appeared to be reasonably well-settled there. The question that arose was whether the regime applied to her at the placement deprived her of liberty in such a way as to engage her rights under art 5 of the European Convention on Human Rights. If the girl’s art 5 rights were engaged, the English court would need to obtain authorisation from the Scottish court for the girl’s deprivation of liberty. If her rights were not engaged, the proceedings could continue in England.
Usually the staff to resident ratio at the placement was 4:6, but for some activities was 1:1. The girl had her own room, which she could lock and where she could be private; staff did not lock her in or supervise her in her room. Generally, the girl had the freedom to wander around the residence, but she was monitored in the grounds, which ran alongside a busy road. The staff accompanied the girl and her parents on some but not all contact visits, because the parents sometimes struggled with her behaviour, were unfamiliar with the local area, and without transport on their visits. The girl had temporarily absconded from the residence a few times; however, she had so far either returned voluntarily, or by persuasion. There was no evidence of any occasion on which she had been forcibly restrained or detained in order to secure her return. Prior to the absconding she had been trusted to make short excursions in daylight hours, on her own, to the local shop, but was currently not allowed to do so.
It was agreed that the girl was not ‘Gillick’ competent to make her own decision about her placement. She had been consulted about her wishes and feelings, which varied somewhat, but broadly seemed to be that while she sometimes wanted to go home, overall she felt safe in the placement and wanted to remain.
Held – (1) Determination of the girl’s rights under art 5 of the European Convention on Human Rights in this context depended on the application of the three-limbed test for deprivation of liberty set out in Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96: (i) the objective element of a person’s confinement to a certain limited place for a not negligible length of time; (ii) a lack of valid subjective consent to the confinement in question; and (iii) confinement imputable to the state. Only where all three components were present was there a deprivation of liberty which engaged art 5, applying Re A-F[2018] EWHC 138 (Fam) (see [23], [24], below).
(2) No party could consent to any deprivation of liberty, given that the girl had no capacity to do so herself and that where, as here, a child was subject to a care order (whether interim or final) neither a parent nor the local authority could exercise parental responsibility in such a way as to provide a valid consent for these purposes, applying Re AB (a child) (deprivation of liberty: consent ) [2015] EWHC 3125 (Fam). Equally, the girl’s accommodation was undoubtedly imputable to the state. Where a child was subject to a care order (whether interim or final) it was obvious that there was involvement and ‘responsibility’ by the state satisfying Storck component (iii). Therefore the issue concerned Storck component (i), confinement (see [25], [26], [28], below).
(3) Applying Surrey County Council v P (Equality and Human Rights Commission and others intervening); Cheshire West and Chester Council v P (same intervening)[2014] UKSC 19, actionable confinement involved ‘complete supervision and control’ and not being ‘free to leave’. While the girl was not free to leave the residential unit, a typical 14 or 15-year-old would also not be free to leave her home permanently in order to live where and with whom she chose, therefore, the core issue in this case was whether the girl was under ‘complete or constant supervision and control’. In the court’s view ‘complete’ or ‘constant’ defined ‘supervision’ and ‘control’ as indicating something like ‘total’, ‘unremitting’, ‘thorough’, and/or ‘unqualified’. Applying Re A-F, the court had examined whether the features of the girl’s life in the residential placement amounted to a regime of ‘complete supervision and control’, when compared with the notional circumstances of the typical child of the same age, station, familial background and relative maturity who was free from disability. That comparable child would be a child whose life was likely to be ‘more regulated and controlled’ than would have been the case some years ago. The court’s primary focus was firmly on the girl and on her actual circumstances, taking into account that every 14-year-old was liable to appropriately imposed boundaries and sanctions. The difficult question was the extent to which the ‘supervision’ of the staff over the girl was different from the watchful eye or supervision of a reasonable parent. The court had not allowed the protective or ‘comparative benevolence’ of the placement or its regime (ie the fact that it was a therapeutic resource which was achieving much positive benefit for the girl) nor the girl’s own broad recognition of the value of the placement to her, to distract it from the essential assessment of the liberty enjoyed (or not enjoyed) by the girl, although those factors had inevitably contributed to that assessment (see [28]–[31], [37], [39], [42], [44], below).
(4) On a fine balance, the regime at the placement did not possess the ‘degree or intensity’ of complete control or supervision to justify the description of ‘deprivation’ of the girl’s liberty. Insofar as the staff imposed limits or boundaries on her movements and freedoms, these represented restrictions of the type which a child of her age, station, familial background and relative maturity would have placed upon her. The court was not persuaded that the staff ratio indicated of itself that the residents were subject to complete or constant supervision and control; occasional 1:1 attention and support was qualitatively different from 1:1 supervision. The actual degree of supervision might well be greater for this girl, given her ‘younger’ presentation or late evolving maturity, than it would be for a more mature 14-year old. It was not immaterial that the girl herself did not feel ‘watched’ all the time, which in itself was a reflection of the actual extent of the supervision. It seemed to the court that she enjoyed a significant degree of autonomy about her recreation while not at school. Some of the restrictions on her movements arose because of the geographic location of the residence. Others had arisen because she had absconded. This was not altogether surprising; just as parents might temporarily ‘ground’ a teenager, or a boarding school head might impose limitations or tighter restrictions on a pupil’s ability to leave the campus, there was an element of ‘teaching a lesson’ as well as promoting future safety. Even if the girl had been forcibly restrained or detained in order to secure her return to the residence, which she had not, the court would require persuading that this would reflect anything other than reasonable and effective parental authority. It would not amount to ‘complete control’ (see [38], [39], [42], [43], [45], below).
Statutory provisions referred to
Children Act 1989, s 20, Pt IV, s 31, s 33(3)(a).
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 5.
United Nations Convention on the Rights of the Child, art 37.
Cases referred to
A-F, Re[2018] EWHC 138 (Fam), [2018] 3 All ER 732, [2018] 2 FLR 319.
AB (a child) (deprivation of liberty: consent), Re[2015] EWHC 3125 (Fam), [2016] 1 WLR 1160, [2016] 2 FLR 601.
Ashingdane v United Kingdom (Application No A/93) (1985) 7 EHRR 528.
D (a child), Re[2017] EWCA Civ 1695, [2018] 2 FLR 13, [2018] COPLR 1, (2018) 160 BMLR 61.
Gillick v West Norfolk and Wisbech AHA [1986] AC 112, [1985] 3 WLR 830, [1985] 3 All ER 402, [1986] Crim LR 113.
Guzzardi v Italy (Application No A/39) (1980) 3 EHRR 333.
HL v United Kingdom (2004) 40 EHRR 761.
JE v DE[2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, (2007) 10 CCL Rep 149, [2007] MHLR 39.
K (a child) (secure accommodation order: right to liberty),Re [2001] Fam 377, [2001] 1 FCR 249, [2001] 2 WLR 1141, [2001] 2 All ER 719, (2001) 165 JP 241, [2001] 1 FLR 526, [2001] HRLR 13, (2001) 3 LGLR 39.
Northumberland County Council v S[2017] EWHC 2432 (Fam) (23 June 2017, unreported).
Stanev v Bulgaria (Application No 36760/06) (2012) 55 EHRR 696, [2012] MHLR 23.
Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96, [2005] MHLR 211.
Surrey County Council v P and Ors (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, [2014] 2 FCR 71, [2014] 2 WLR 642, [2014] 2 All ER 585, [2014] PTSR 460, [2014] COPLR 313, [2014] HRLR 13, (2014) 17 CCL Rep 5, [2014] Med LR 321, (2014) 137 BMLR 16, [2014]...
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