Re AB (A child: deprivation of liberty)  EWHC 3125 (Fam),  MHLO 74
"There is a large measure of agreement between the parties on the relevant factual matrix and the legal principles applicable to the issues I am asked to determine, namely: (1) Whether AB is deprived of his liberty at X. (2) If so, are the parents and/or the local authority entitled to consent to the same? (3) If not, whether the court will sanction the deprivation of liberty and, if so, under what provision, power or jurisdiction? (4) Whether it would be appropriate to give guidance on the approach to, and conduct of, similar cases."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Incapacitated child — Deprivation of liberty — Child placed in residential home under interim care order — Circumstances amounting to deprivation of liberty — Whether parents or local authority entitled to consent to deprivation of liberty — Children Act 1989, ss 20, 25, 33(3), 100(4) — Human Rights Act 1998, s 6, Sch 1, Pt I, art 5
In re AB (A Child) (Deprivation of Liberty)
B;  WLR (D) 432
Fam D: Keehan J: 28 July 2015
To permit a local authority to consent to the deprivation of liberty of a child who was the subject of an interim or full care order would (i) breach article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, (ii) would not afford the proper safeguards which would secure the legal justifications for the constraints under which the child was held, and (iii) would not meet the need for a periodic independent check on whether the arrangements made were in the child’s best interests. The court would therefore need to make a declaration as to the lawfulness of the child’s deprivation of liberty.
Keehan J, sitting in the Family Division, so stated when granting an application by A Local Authority for permission to invoke the inherent jurisdiction of the High Court to authorise the placement of AB, aged 14, who suffered from moderately severe learning difficulties and ADHD, at X residential care home under an interim care order pursuant to section 31 of the Children Act 1989. The mother, father and AB, by the children’s guardian, were parties to the application and all were agreed that the circumstances in which AB lived at that establishment amounted to a deprivation of his liberty as opposed to his liberty merely being restricted. The issues for determination were : (1) whether AB was deprived of his liberty at the care home; (2) if so, whether the parents and/or the local authority were entitled to consent to the same; (3) if not, whether the court would sanction the deprivation of liberty and, if so, under what provision, power or jurisdiction; and (4) whether it would be appropriate to give guidance on the approach to, and conduct of, similar cases.
KEEHAN J said that despite the fact that AB might, when he was well behaved, leave the home from time to time for specified periods, overall he was the subject of continuous supervision and control to a degree which amounted to a deprivation of his liberty: see JE v DEM; B, para 115. Although parents could consent to a placement in such conditions (see In re D (A Child) (Deprivation of Liberty) M at –), where children had been removed from their parents’ care pursuant to a section 20 agreement as a prelude to the issue of care proceedings it would be difficult to conceive of circumstances where it could properly be said that a parent’s consent to what otherwise would amount to a deprivation of liberty would fall within the zone of parental responsibility. It would not be right or appropriate within the spirit of Surrey County Council v P (Equality and the Human Rights Commission intervening) M; B to permit such a parent to so consent. That reasoning applied with even greater force where the child was in the care of a local authority and was subject to interim or full care orders. Section 25 of the 1989 Act did not provide an appropriate mechanism for the authorisation of a deprivation of liberty, nor on the facts did AB satisfy the requisite criteria for a secure accommodation order. Absent a deprivation of liberty authorisation, AB’s continued placement at X would be unlawful and in breach of article 5. The local authority, as a public body, was required by section 6 of the Human Rights Act 1998 not to act in a way that was incompatible with a Convention right. Accordingly, AB would have to move to another establishment, where he would not be under constant supervision and control; such a move would not be in his welfare best interests and it was likely he would suffer significant harm as a result. Nor would AB, at this time, wish to move to another residential establishment. Being satisfied that the result which the local authority wished to achieve could not be achieved by the making of any other kind of order, and that if the court’s jurisdiction was not exercised AB was likely to suffer significant harm within section 100(4) of the 1989 Act, the court would (i) grant the local authority permission to invoke the inherent jurisdiction and (ii) authorise AB’s deprivation of liberty.
Giving guidance on the approach to, and conduct of, similar cases: (1) Local authorities were under a duty to consider whether any children in need or looked-after children, especially those in foster care or in a residential placement, were subject to restrictions amounting to a deprivation of liberty. (2) The Surrey County Council v P criteria had to be rigorously applied to the individual circumstances of each case. (3) The comparison to be made was not with another child of the same age placed in foster care or in a residential home, but simply with another child of the same age. (4) A deprivation of liberty would be lawful if warranted under statute, for example, under section 25 of the 1989 Act or the Mental Health Act 1983 or under the remand provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 or if a child had received a custodial sentence under the Powers of Criminal Courts (Sentencing) Act 2000. (5) Where a child was not looked after, then an apparent deprivation of liberty might not in fact be a deprivation at all if it fell within the zone of parental responsibility exercised by the parents (see In re D (A Child) (Deprivation of Liberty)M) and the exercise of parental responsibility might amount to a valid consent, with the consequence that the second limb of Surrey County Council v P was not met. In those circumstances, the court would not need to make any declaration as to the lawfulness of the child’s deprivation of liberty. (6) Where a child was a looked-after child different considerations might apply regardless of whether the parents consented to the deprivation of liberty. (7) Where a child was the subject of an interim or full care order it was extremely unlikely that a parent could consent to what would otherwise amount to a deprivation of liberty; nor could a local authority so consent. (8) The local authority had first to consider whether section 25 of the 1989 Act was applicable or appropriate in the circumstances of the individual case, requiring an analysis of (i) whether any of the regulations disapplied section 25; (ii) whether the intended placement was accommodation provided for the purposes of restricting liberty and, thus, secure accommodation within section 25; and (iii) whether the test set out in section 25(1)(a) or (b) was met. (9) If it was not, the section 100(4) leave hurdle was likely to be crossed on the basis that any unlawful deprivation of liberty was likely to constitute significant harm. (10) Irrespective of the means by which the court authorised the deprivation of a child’s liberty, whether under section 25 or the inherent jurisdiction, the local authority should cease to impose such deprivation as soon as (i) the section 25 criteria were not met or (ii) the reasons justifying the deprivation of liberty no longer subsisted. Authorisation was permissive and not prescriptive.
Appearances: Jim Tindal for the local authority; Kirstie Danton for the mother; Clare Dillon for the father; Nicholas Goodwin QC for AB, by the children’s guardian.
Reported by: Jeanette Burn, Barrister.
© 2015. The Incorporated Council of Law Reporting for England and Wales.
A Local Authority v D
 Fam Law 1464,  WLR 1160,B, B