Child unlawfully deprived of their liberty during lockdown

Monday 21 February 2022

Rebekah Wilson, of the Garden Court Chambers Famly Team, appeared for the Respondent father, instructed by Saleha Bibi of Sternberg Reed.

AB (A Child : human rights) [2021] EWFC B100 (01 April 2021)

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Rebekah Wilson of Garden Court Chambers appeared for the Respondent father in this important and troubling case where a child, AB, had been deprived of his liberty - during the lockdown unlawfully - in a privately run children’s home.

AB was in a privately run children's home, one of many run by Horizons Care Ltd

Horizons Care Ltd run a number of residential placements - for some of the UK's most vulnerable children - at a profit.  One of the homes that AB stayed in was closed following an OFSTED inspection during the course of public law proceedings.

In the judgment, the local authority was criticised by the judge over its failure to seek the court’s authorisation of a deprivation of liberty (DoL) of a 13-year-old boy (AB).

For several months AB had had his liberty restricted in a 'residential unit', a privately run care home.

Judge Dias QC stated:

“Between November 2020 and March 2021, AB was confined in the residential unit without lawful authority. The deprivation [of] this child's liberty was unlawful. That is the crux of the problem in this case. Regrettably, it is not the only one. Yet today the local authority applies to further deprive AB of his liberty.”

The background to the case was that AB’s parents had far-reaching problems and had been unable to care for him. A special guardianship order was granted before his first birthday in favour of his paternal grandmother in 2009. Problems developed there also, and there were several police callouts. In February 2020 the grandmother took AB to a police station stating she could no longer cope with his behaviour.

In March 2020 the local authority issued protective proceedings. An interim care order was granted. AB was placed in foster care, but the foster carers were unable to care for him due to his complex needs and emotional dysregulation.

In August 2020 AB was placed in a residential unit. An assessment by a child psychologist confirmed a clinical diagnosis of Autism Spectrum Disorder (ASD), severity level 1 without intellectual impairment. She also made a concomitant diagnosis of Oppositional Defiant Disorder as well as attachment issues. In a second report, she stated that AB would need to stay in a small unit with simultaneous therapy for 9-12 months.

In January 2021 AB was involved in an incident in the care home when he was physically restrained. He complained that a member of staff tripped him up unnecessarily. The staff member, who said he had lost his balance due to an ear infection, was suspended and not permitted to return to the home.

On 28 January AB's social worker informed the Children's Guardian of the incident earlier that month with AB. The Guardian told the social worker that the local authority should consider applying for a Deprivation of Liberty order.

On 5 February, there was a Looked-After Child Review, which the Children's Guardian attended. It was brought to the meeting's attention that AB had been restrained twice since the previous review and a staff member from the latest restraint had been suspended. The recommendation of the meeting was that the placement continue and the social worker take advice about a DoL application.

Three days later the Children's Solicitor, on behalf of the Guardian, emailed the local authority requesting them to reconsider applying for a DoL order. The local authority replied that there would be a meeting on 18 February to consider the DoL situation and any possible application.

The local authority's overarching application for a care order was set down for a final hearing in March. However, on the first day, all parties agreed that the hearing could not proceed.

The judge said these concerns included AB fighting with other young people in his placement, engaging in challenging behaviour towards other young people, allegations AB made that he was being bullied, and concern that AB was accessing adult images on the internet.

The local authority concluded that the residential unit was not appropriately safeguarding AB. The court sought more detailed information about these “troubling” reports.

The local authority filed its first DoL application, which was heard two days later by the court. The Registered Manager of the unit attended the hearing remotely and briefly addressed the court. The declaration sought by the local authority was granted, invoking the court's inherent jurisdiction.

At the same time, the court was concerned about AB. It made various case management directions, including a direction requiring information about AB's residence at the unit to be provided to the court.

In the background, AB’s social worker had contacted Ofsted, which in turn conducted a monitoring inspection of the care home. Ofsted’s report was “scathing”, the judge said, and the registration of the residential unit was suspended immediately. Judge Dias QC stated:

"Ofsted, as is their legal duty, provided a detailed list of statutory requirements for necessary remedial work prior to any reopening. The conditions that AB and the other children were living in shocked even senior managers of the company that operates the home when they visited during the Ofsted inspection. AB was living in a neglected, chaotic and unsafe environment."

The children, including AB, were rehoused. The watchdog specified 11 statutory requirements for necessary remedial work prior to any reopening. On 24 March the local authority filed a second DoL application.

On the issue of the deprivation of AB’s liberty, Judge Dias QC said in his ruling:

“How could it come about that a child could be detained without lawful authority for months and no one did anything about it? Should the court authorise the further deprivation of AB's liberty today? These are among the urgent issues for this court to determine. Therefore, the court rules today upon a second application by the applicant local authority to deprive AB of his liberty by invoking the inherent jurisdiction of the High Court.”

The judge concluded that it was lawful and in the best interests of AB to be deprived of his liberty at the second home and accordingly he authorised such deprivation of liberty. He also approved certain measures as constituting a necessary and proportionate deprivation of his liberty, saying these were the least restrictive intervention to meet the risk of harm that arises.

Returning though to the issue of the unlawful deprivation of liberty of AB, Judge Dias QC noted the comments of MacDonald J in LB Lambeth v L (Unlawful Placement) [2020] EWHC 3383 (Fam):

"It is vital that all local authorities adhere strictly to the proper legal procedures where a child is to be deprived of his or her liberty in a placement.  Those proper procedures are summarised comprehensively in the foregoing paragraphs taken from Re A-F (Children) [2018] EWHC 138 (Fam) and must be followed by local authorities assiduously...

...Here when specifically asked by the court, the applicant local authority accepted that it had failed to ensure that the proper procedures were followed at all, let alone assiduously. No application was made to invoke the inherent jurisdiction until the case came before me in the first week of March 2021. No legitimate or plausible reason has been given for the local authority's failure to seek the court's authorisation. These, I reiterate, are not technicalities. They are requirements of the rule of law. Either a deprivation of liberty is lawful or it is not. Between November 2020 and early March 2021, it was not."

"Local authorities are under a duty to consider whether children who are looked after are subject to restrictions amounting to a deprivation of liberty.  A local authority will plainly leave itself open to liability in damages, in some cases considerable damages, under the Human Rights Act 1998 if it unlawfully deprives a child of his or her liberty by placing a child in a placement without, where necessary, first applying for an order authorising the deprivation of the child's liberty."

He directed copies of the judgment be provided to the Children's Commissioner for England and Ofsted. 

A longer version of this article was first published on Local Government Lawyer.

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