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|A Local Authority v AT and FE (2017) EWHC 2458 (Fam)||Child, no approved secure accommodation available, deprivation of liberty||"Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as secure accommodation orders. Such orders may be made and, indeed, frequently are made by courts, including courts composed of lay magistrates. It is not necessary to apply to the High Court for a secure accommodation order. However, as no approved secure accommodation was available, the local authority required the authorisation of a court for the inevitable deprivation of liberty of the child which would be involved. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction. ... I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. ... In my own experience it is most unusual that a secure accommodation order could be made without the attendance of the child if of sufficient age and if he wished to attend, and without the child being properly legally represented. It is true, as Mr Flood says, that this is not an application for a secure accommodation order, but the analogy is a very close one. Indeed, the only reason why a secure accommodation order is not being applied for is because an approved secure accommodation unit is not available. It seems to me, therefore, that the statutory safeguards within section 25 should not be outflanked or sidestepped simply because a local authority have been forced, due to lack of available resources, to apply for the exercise of the inherent jurisdiction of this court rather than the statutory order. ... I propose to order that the child now be joined as a party to these proceedings and Cafcass must forthwith allocate a guardian to act on his behalf. ... In my view it is very important that ordinarily in these situations, which in plain language involve a child being 'locked up', the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so."|
|Buckinghamshire County Council v RT (2018) EWCOP 12||DOL - 17-year-old||"I am concerned with a young man who is now 17 ½ years old and who I shall refer to as RT in this judgement. ... RT's behavioural issues are such that it is no longer safe for him at home with his adoptive parents and siblings. The local authority have therefore applied under the Mental Capacity Act 2005 for an order pursuant to section 4 and 16 of that act to deprive RT of his liberty so that he may be placed at [a place]. The arrangements for his care at that placement involve 2:1 supervision during the day and one to one at night. ... Is clear that the arrangements set out in the care plan amounts to a deprivation of liberty within the 'Storck' and Cheshire West cases. The level of supervision described is far in excess of that which might be applied to even the most unruly 17-year-old in a domestic setting. It clearly amounts to continuous supervision and control. ... It is very clear that it is RT's best interests to remain in an environment in which he can be protected from his own impulsivity and where others are protected. The very high levels of supervision are necessary and proportionate in the particular circumstances of this case. He needs intensive support and therapeutic input in order to reduce the risks he faces. This will not be a short-term recess but is likely to take months if not years. I therefore will make a deprivation of liberty order for one year. RT's 18th birthday is clearly a milestone for any teenager but I think has particular significance for RT. I will therefore list a review shortly before his 18th birthday which in particular will enable him to have a say at that point."|
|Re A-F (Children) (2018) EWHC 138 (Fam)||DOL - children||"... [T]he situation of the "young" or "very young" ... does not involve a "confinement" for the purposes of Storck component (a), even though such a child is living in circumstances which plainly satisfy the Cheshire West "acid test". ... For all present purposes, "confinement" means not simply "confining" a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. ... Now at this point in the analysis a difficult question arises which has not hitherto been addressed, at least directly. At what point in the child's development, and by reference to what criteria, does one determine whether and when a state of affairs satisfying the "acid test" in Cheshire West which has hitherto not involved a "confinement" for the purposes of Storck component (a), and where Article 5 has accordingly not been engaged, becomes a "confinement" for that purpose, therefore engaging Article 5 (unless, that is, a valid consent has been given by someone exercising parental responsibility)? ... [W]hether 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 the restrictions which would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ... The question is raised as to whether it is possible to identify a minimum age below which a child is unlikely to be "confined", and hence to be deprived of their liberty, given the expectation that a comparable child of the same age would also likely be under continuous supervision and control and not free to leave. ... Inevitably, one has to proceed on a case-by-case basis, having regard to the actual circumstances of the child and comparing them with the notional circumstances of the typical child of (to use Lord Kerr's phraseology) the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ...[T]he best I can do, by way, I emphasise, of little more than 'rule of thumb', is to suggest that: (i) A child aged 10, even if under pretty constant supervision, is unlikely to be "confined" for the purpose of Storck component (a). (ii) A child aged 11, if under constant supervision, may, in contrast be so "confined", though the court should be astute to avoid coming too readily to such a conclusion. (iii) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion. That said, all must depend upon the circumstances of the particular case and upon the identification by the judge in the particular case of the attributes of the relevant comparator as described by Lord Kerr. The question is also raised whether, in undertaking the comparison required by the "acid test", the comparison should be made with a 'typical' child of the same age who is subject to a care order. The answer in my judgment is quite clearly, No. ... I turn to matters of process and procedure."|
|Re A-F (Children) (No 2) (2018) EWHC 2129 (Fam)||DOL - children||"The purpose of the hearing, as it developed, was to deal with four matters: (i) A review of any relevant developments since the previous hearing in August 2017. (ii) The making of final orders. (iii) In that context, consideration of the implications of the fact that two of the children with whom I am concerned either have had or will, during the currency of the final order, if granted, have their sixteenth birthday. (iv) The formulation, if possible, of standard forms of order for use in such cases."|
|Re D (A Child) (2017) EWCA Civ 1695||DOL||"This is an appeal from an order of Keehan J sitting in the Court of Protection dated 15 March 2016, following a judgment handed down on 21 January 2016: Birmingham City Council v D!,  PTSR 1129. Permission to appeal was granted by McFarlane LJ on 14 June 2016. The proceedings related to D, who was born on 23 April 1999, and was therefore 16 years old when the matter was heard by Keehan J in November 2015. Similar issues in relation to D had been before Keehan J in the Family Division earlier in 2015 when D was 15 years old, judgment (which was not appealed) having been handed down on 31 March 2015: Re D (A Child) (Deprivation of Liberty) !, !. In each case, the essential question was whether D was being deprived of his liberty within the meaning of and for the purposes of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms."|
|Re T (A Child) (2018) EWCA Civ 2136||Secure accommodation||"This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act 1989, s 25 (CA 1989)."|
|Re Y (Autism - Care Proceedings - Deprivation of Liberty): LB Barking and Dagenham v Mr and Mrs X (2018) EWHC B63||DOL of child||"The local authority, represented by Ms Mustafa of counsel, applies for a care order under Section 31 of the Children Act 1989 and for an order declaring that it is lawful for the local authority to deprive Y of his liberty. Y is the child of the First and Second Respondent parents. Mr and Mrs X are represented by Ms Prolingheuer of counsel. Mr and Mrs X oppose the application for a Care Order and DoL and submit he should return home to their care"|