Family cases and Deprivation of Liberty

Tuesday 15 May 2018

There have been two important recent cases which have considered issues of deprivation of liberty and young people subject to care proceedings.

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The first decision is Re D (A Child) [2017] EWCA Civ 1695. D, aged 16, had ADHD, Asperger’s syndrome, Tourette’s syndrome, and a mild learning disability. His parents agreed to his placement by the local authority in specialist accommodation under s. 20 Children Act 1989. The issue in the case was whether his confinement at the placement was a deprivation of liberty within the meaning of Art 5 or whether his parents could consent to the confinement so that the subjective component of the lack of valid consent to the confinement (Storck component (b) of a deprivation of liberty) was not present. The court held that the parents could exercise their parental responsibility to give consent to the confinement where the 16 or 17-year old lacked “Gillick competence”. Therefore, where such consent was given, there was no deprivation of liberty within the meaning of Art 5. (See paragraphs 84 and 128).

The second decision Re A-F (Children) [2018] EWHC 138 Fam concerned the deprivation of liberty and children who are subject to a care order. The critical question is whether there is a confinement (Storck component (a)). That question turns on comparing the restrictions with those for other children of the same age, station, family background and relative maturity who are free from disability [see §41-44]. Neither a local authority nor parent can exercise their parental authority to give consent to a deprivation of liberty (for the purpose of Storck component (b)). Therefore, where the placement of the child results in a confinement of the type referred to, and is not a placement in secure accommodation within s 25 CA 1989, there must be judicial authorisation for any deprivation of liberty given under the inherent jurisdiction in the High Court or, if the child is over 16 (and lacks capacity under MCA 2005) in the Court of Protection. [26]. Munby P provides guidance as to the practice and procedure to be followed in such cases.

Also see LB Wandsworth v M and Others [2017] EWHC 2435 (Fam), which concerned decisions about residence for a young man who was subject to care proceedings and about to turn 18.

Mai-Ling Savage is a member of the Garden Court Chambers Family Team.

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