Re A-F (Children)

JurisdictionEngland & Wales
JudgeSir James Munby
Judgment Date31 January 2018
Neutral Citation[2018] EWHC 138 (Fam)
CourtFamily Division
Docket NumberCase numbers omitted
Date31 January 2018

[2018] EWHC 138 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir James Munby PRESIDENT OF THE FAMILY DIVISION

Case numbers omitted

Re A-F (Children)

Mr Shaun Spencer (instructed by the local authority) for the local authority

Ms Frances Heaton QC and Ms Kate Burnell (instructed by Hibberts LLP, Paul Crowley & Co and Lewis Rogers) for the children's guardians

Hearing dates: 25–26 May, 2–3 August 2017

Judgment Approved

This judgment was handed down in open court

Sir James Munby, President of the Family Division:

1

These are a number of test cases, listed before me in accordance with directions given by Peter Jackson J, as he then was, on 11 May 2017. They raise various substantive and procedural questions in relation to the interface between care proceedings brought in the Family Court pursuant to Part IV of the Children Act 1989 and the requirements of Article 5 of the Convention. Specifically, the circumstances in which Article 5 is engaged in relation to a child in the care of the local authority and, where Article 5 is engaged, what procedures are required to ensure that there is no breach of the requirements of Articles 5(2)–(4). Specifically, the questions are those set out in Annex 2 to his order. As the matter developed before me, however, the Annex was refined, it being agreed, not least in the light of Re X (Court of Protection Practice) [2015] EWCA Civ 599, [2016] 1 WLR 227, that I should confine my attention to the issues arising in the cases listed before me.

2

The matter initially came before me at Chester in May 2017 and was adjourned, part heard, to a further hearing at Liverpool in August 2017. At the end of that hearing I reserved judgment.

3

I shall have to elaborate some of this in due course, but, as summarised in the Table attached to this judgment, the cases relate to seven children, A, B, C, D1, D2, E and F (D1 and D2 are twins) born on various dates between 2001 and 2006 (and therefore with ages ranging from 16 to 11). In respect of each of them a final care order was made, in each case in favour of the same local authority, the dates of these orders ranging between 2010 and 2013, except for one in 2017. Each child has difficulties, summarised in the Table under the heading ‘Health’. Some are in foster care; others in specialist placements. All are subject to certain restrictions on their movement or liberty, summarised under the heading ‘Restrictions’.

4

There are three children's guardians, SW being the guardian for A and B, DD the guardian for C, D1, D2 and E, and KN the guardian for F. Only KN acted as guardian in the care proceedings; indeed, it was because of questions which arose in the context of the care proceedings in relation to F that these test cases were listed. Perfectly properly, and most helpfully, the guardians, whilst never losing sight of the individual needs and circumstances of each child, have collaborated as far as possible, not least in instructing Ms Frances Heaton QC and Ms Kate Burnell to represent each of them. The local authority, which there is no need for me to identify, and which in the interests of the children I have decided not to name, was represented by Mr Shaun Spencer. I am very grateful to all of them, guardians and counsel alike, for their invaluable assistance in a matter which raises a number of important if teasing problems.

5

I should record that, when the time came for the guardians to give oral evidence, I proposed, and no-one disagreed, they should all give evidence together at the same time, rather than seriatim, in a process which has now come to be referred to as ‘hot-tubbing’. Although most usual nowadays in the context of expert evidence – and children's guardians are, of course, experts, even if not in the narrow sense – hot-tubbing', at least in the family courts, is not confined to experts. An early reported example is Re MM (Medical Treatment) [2000] 1 FLR 224, 234G, a case in which I appeared as counsel before Black J, as she then was. A few years later I adopted the same technique in an unreported wardship case where I ‘hot-tubbed’ the ward's school headmaster and form-teacher.

6

At the time I reserved judgment in these cases, the judgment of the Court of Appeal on the appeal from the decision of Keehan J in Birmingham City Council v D [2016] EWCOP 8, [2016] PTSR 1129, which had been heard in February 2017, was awaited. In circumstances where all the children involved were protected by the interim orders I had made, it seemed to me sensible to defer giving judgment in these cases until the Court of Appeal had given judgment in the other case. That judgment was handed down on 31 October 2017: Re D (A Child) [2017] EWCA Civ 1695. I now hand down judgment in these cases.

7

Before proceeding any further, it is convenient to clear the ground by summarising what is not controversial.

8

The framework within which the issues arising in these cases 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 Lady Hale 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.”

9

I refer, by way of shorthand, to these three components as Storck components (a), (b) and (c); sometimes they are referred to as Storck limbs (1), (2) and (3). To ensure clarity of exposition, I 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). In contrast, I use the word “confinement” to describe the state of affairs referred to in Storck component (a).

10

I take Storck components (a), (b) and (c) in turn, starting with Storck component (c). It is so obvious that where a child is subject to a care order (whether interim or final) there is involvement and “responsibility” by the State satisfying Storck component (c) – both the State in the form of the court and the State in the form of the local authority named in the care order – that the point requires neither elaboration nor citation of authority.

11

I turn to Storck component (b), starting with what the Court of Appeal said in Re D (A Child) [2017] EWCA Civ 1695, para 37:

“In accordance with [ Nielsen v Denmark 11 EHRR 175], there are circumstances in which the consent by a “holder of parental authority” – in domestic terms, someone with parental responsibility – will provide a valid consent for the purposes of Storck component (b) to something which is a “confinement” for the purposes of Storck component (a). Those circumstances, although “extensive”, are not “unlimited.””

The Court of Appeal went on to explain (para 85) that:

“The ambit or extent of parental responsibility, the extent of the “zone” of parental responsibility, in any particular case [is] to be ascertained by reference to general community standards in contemporary Britain, the standards of reasonable men and women in … 2017.”

The Court of Appeal held (paras 121–146), reversing Keehan J on this point, that (see para 128), in the context with which I am here concerned, “parental responsibility” is, in principle, exercisable in relation to a 16- or 17-year old child who, for whatever reason, lacks ‘ Gillick capacity’.”

12

I need not further explore this aspect of Storck component (b) for what is important for present purposes are two points:

i) First, where a child is subject to a care order (whether interim or final) neither the local authority nor a parent can exercise their parental responsibility in such a way as to provide a valid consent for the purposes of Storck component (b): see In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160, paras 26–29, 36, considered in Re D (A Child) [2017] EWCA Civ 1695, paras 48, 109–112.

ii) Secondly, a foster carer does not have parental responsibility enabling the carer to provide a valid consent for the purposes of Storck component (b): see Re D (A Child) [2017] EWCA Civ 1695, para 31.

13

Pausing there, it follows that, in relation to a child who is subject to a care order, the question of whether there is, in the sense in which I have defined the expressions, a “deprivation of liberty” within the meaning of Article 5(1) engaging the State's obligations under Articles 5(2)–(4), will turn on whether there is a “confinement” as referred to in Storck component (a). So the crux of the analysis for present purposes relates to Storck component (a).

14

Cheshire West formulates the “acid test” of whether Storck component (a) is satisfied as being (see the judgment of Lady Hale, paras 48–49, 54):

“whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives.”

It will be seen that there are two aspects of the “acid test”: “complete supervision and control” and not being “free to leave”. As Lady Hale pointed out (para 49) these are two separate requirements:

“A person might be under constant supervision and control but still be free to leave should he...

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