5 March 2018, by Emma Fitzsimons
The court gave guidance on when Article 5 ECHR is engaged in relation to a child in the care of the local authority, and the procedures necessary to ensure the deprivation of liberty is lawful.
The test cases concerned seven children, aged between 11 and 16. A final care order was made in each case in favour of the same local authority. Each had health difficulties such as autism, severe learning disabilities or global development delay. Each was in foster care or a residential placement. Some were in locked environments, and all were heavily supervised.
Munby P set out the legal framework in which the issue arose, including:
- The three Storck components of deprivation of liberty, as summarised by Lady Hale in Cheshire West  UKSC 19:
(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
(c) The attribution of responsibility to the state
- Where a child is subject to a care order, neither the local authority nor a parent can exercise their parental responsibility in such a way as to provide a valid consent for the purpose of Storck component (b) 
- A foster carer does not have parental responsibility enabling the carer to provide a valid consent for the purpose of Storck component (b) (Re D (A Child)  EWCA Civ 1695, paragraph 31)
- Cheshire West formulates the “acid test” of whether Storck component (a) is satisfied as being “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”
Munby P held that where a child was subject to a care order, the critical question would be whether there was confinement i.e. Storck component (a). If there was, the state would be responsible, and neither the local authority nor a parent could exercise their parental responsibility so as to consent.
He took care at  to distinguish between a “deprivation of liberty” within the meaning of Article 5 and a restriction on liberty of movement governed by Article 2 of Protocol 4.
Many aspects of the normal exercise of parental responsibility that interfere with a child’s freedom of movement do not involve a deprivation of liberty engaging Article 5, even if they are a restriction on liberty of movement (Re D (A child)  EWCA Civ 1695 at ). Whether particular accommodation is locked or lockable is not determinative of whether there is confinement as described in Storck component (a), (HL v United Kingdom (2004) 40 EHRR 761 at ).
Most eight-year-old children living with their parents at home would be living in circumstances amounting to confinement that satisfy the ‘acid test’, but common sense would plainly indicate that such a child is not, within the meaning of Article 5, deprived of his liberty.
For a child in care, the inquiry would focus more on supervision and control, rather than freedom to leave.
He held that where the placement of a child involves a “confinement” for the purpose of Storck component (a) but is not secure accommodation within the meaning of s 25 Children Act 1989, there must be judicial authorisation in order to comply with Article 5 and this can only be provided by the High Court, in the exercise of the inherent jurisdiction or in some circumstances if the child has reached the age of 16, by the Court of Protection .
He held (at ) that whether a state of affairs which satisfies the ‘acid test’ amounts to a confinement for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with those that would apply to a child of the same “age”, “station”, “familial background” and “relative maturity” who is “free from disability”.
Although each case had to be determined on its facts, as a rule of thumb, a 10-year-old under constant supervision was unlikely to be being deprived of his liberty, an 11-year-old might be, but the court would more readily conclude that a 12-year-old was.
Article 5 compliant process
He dealt with the requirements of an Article 5 compliant process at - which includes that:
- Confinement will be lawful if, as a matter of substance, it is both necessary and proportionate i.e. the least restrictive regime which is compatible with the child’s welfare and, as a matter of process, has been authorised by a judge in the Family Division
- An application to the court should be made where the circumstances in which the child is, or will be living constitute at least arguably, a deprivation of liberty
- There must be an oral hearing in the Family Division, though a s.9 judge could preside
- The child must be a party to the proceedings and have a guardian and should be permitted to express their wishes and feelings if of an age to do so
He also dealt with the requirement of review by a judge at least every 12 months [55 – 57].
This case provides much-needed guidance as to when care arrangements for children in the care of the local authority including in foster care amount of a deprivation of liberty, and steps that must be taken to ensure compliance with Article 5 ECHR.
The President was at pains to state throughout that whether there is a confinement for the purposes of Article 5 will turn on the individual facts of the case, emphasising a child development-based approach.
He gave some useful guidance to the comparative approach required at -, citing Re B  EWHC B93, as providing an “insightful” and “compelling” analysis of a typical 11-year-old’s life: comparing a child with his peers and distinguishing commonplace restrictions such as limited access to games consoles and being accompanied on journeys in the community, with much more significant restrictions like 24-hour supervision, restricted contact with parents and siblings and use of physical restraints.
The judgment is available: Re A-F (Children) (Care Orders: Restrictions on Liberty)  EWHC 138 (Fam)