National Deprivation of Liberty Court Update: Consent and Necessity of DOLs

Monday 21 October 2024

Blog by James Holmes of the Garden Court Family Law Team.

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In June 2024, the most recent statistics from the National Deprivation of Liberty Court was released by the Ministry of Justice, which showed that 291 children were subject to applications to deprive them of their liberty between January 2024 and March 2024. This is a slight decrease on the figures for January 2023 – March 2023.

Questions have arisen as to whether this number will reduce further in light of the following decisions of Lieven J;

  1. Re J: Local Authority consent to Deprivation of Liberty [2024] EWHC 1690 (Fam)
  2. Peterborough City Council v Mother (Re SM) [2024] EWHC 493 (Fam)

The above judgments relate to deprivation of liberty applications concerning children under the age of 16 years old. Re J concerned a young boy of 14 years of age, who was looked after by the Local Authority under Section 20 Children Act 1989 but, at the hearing before Lieven J, was made subject to a Care Order. J resided in a specialist children’s home and was described as having a complex set of diagnoses, including autism, ADHD, Pica. Whilst SM concerned a 12 year old girl with profound and enduring disabilities, who was non-mobile and non-verbal, and resided in Local Authority foster care under a final Care Order.

In both cases Lieven J found that it was not necessary for either Local Authority to have made an application for a Deprivation of Liberty Order. In the case of J this was because Lieven J concluded at [35];

‘Therefore the decision to “deprive him of his liberty” is not in my view a decision of such magnitude as to fall outside the LA’s powers, but rather an exercise of their statutory duties to him. In my view the LA have the power to consent to the restrictions and therefore to the deprivation of his liberty, and no DoLs order is needed.’

In the case of SM;

‘There are a number of different ways of explaining why SM is not deprived of her liberty in breach of Article 5, but they all come down to focusing on the reason why she cannot leave where she is living. That reason is her profound disabilities, not any action of the State, whether by restraining her or by failing to meet the State’s positive obligations to enable her to leave.’

As set out below, I don’t believe there will be a reduction in applications to the National Deprivation Liberty Court, until the issues identified below are addressed by the Appellate Courts.

Re J: Local Authority consent to Deprivation of Liberty [2024] EWHC 1690 (Fam)

This is a further case which causes issues for cases involving young people under the age of 16, where courts have concluded parents, be that biological or corporate parents, are able to consent to a child’s Deprivation of Liberty. Recent cases which have considered this issue are Lancashire CC v PX & Ors [2023] 1 FLR a decision by HHJ Burrows and Lincolnshire CC v TGA [2022] EWHC 2323 (Fam) another case of Lieven J. But due to all of these decisions being decisions of first instance, a degree of caution needs to be had with placing any overreliance on them.

In relation to Re J, Lieven J applied Section 33(b) Children Act 1989 along with the observations of the Court of Appeal from a case about vaccinations, Re H (Child) [2020] EWCA Civ 664, and concluded at [33 – 35];

  1. The approach that the LA can never exercise its powers of parental responsibility under s.33(3)(b) to grant valid consent for a deprivation of liberty rests on the proposition that a deprivation of liberty is necessarily a decision of such magnitude as to require the role of the court. Although logically that conclusion might flow from what Lady Hale said in Cheshire West and Re D, neither of those decisions concerned the scope of parental responsibility in respect of children under the age of 16, let alone the scope of s.33(3)(b) in decisions concerning children of that age and deprivation of liberty.
  1. Further, if one applies the test to the facts of J’s case, it is in my view clear that the decision to deprive him of his liberty is an inevitable one, which no reasonable court or parent would depart from. One way of testing this proposition is to consider what would happen if the LA, or those authorised to look after J i.e. the Children’s Home, did not put in place the restrictions sought. They would very obviously be in breach of their duty of care to J, given his known vulnerabilities and the manifest risks to his safety if he was allowed to leave the home unsupervised. In reality it is the obligation of any responsible carer of J to place restrictions upon him in order to keep him safe. Therefore, far from the restrictions amounting to a serious infringement of his rights that no LA could lawfully consent to, they are restrictions essential to ensuring his best interests, and indeed required by the State’s positive obligations under Article 2 ECHR to protect his life. In those circumstances in my view they fall within the LA’s statutory powers in s.33 CA.
  2. Therefore the decision to “deprive him of his liberty” is not in my view a decision of such magnitude as to fall outside the LA’s powers, but rather an exercise of their statutory duties to him. In my view the LA have the power to consent to the restrictions and therefore to the deprivation of his liberty, and no DoLs order is needed.

When looking at the judgment a number of questions arise which appear not to have been addressed in the judgment, in particular, does the fact of making an application to the court provide a safeguard to the child and the family. The author is aware of a number of cases, where child and parents are being put in positions where it appears they have no option but to consent, and by applying Lieven J’s analysis could result in such cases not coming before the court for scrutiny. Such a situation would result in the Local Authority being put in the situation as noted by the ECHR in HL v United Kingdom 45508/99 [2004] ECHR 471;

‘This left “effective and unqualified control” in their hands. While the Court does not question the good faith of those professionals or that they acted in what they considered to be the applicant’s best interests, the very purpose of procedural safeguards is to protect individuals against any “misjudgments and professional lapses” (Lord Steyn, paragraph 49 above).’

Peterborough City Council v Mother (Re SM) [2024] EWHC 493 (Fam)

The first thing to note, is that both judgments are first instance decisions, but they do raise significant challenges to the Cheshire West approach to such cases. It is understood that the decision in Re SM has not been appealed, it is not known whether the decision in Re J has been challenged. It would have been useful for the appellate courts to have addressed the issues which have been raised by both these judgments.

In relation to the case of Re SM, there are a number of reasons why it is unlikely to apply to the vast majority of cases which come before the National Deprivation of Liberty Court, such as they are cases coming before the court due to a crisis in service provision. What some may seek to apply, in particular in cases where professionals or those caring for a child have not sought to ascertain what that child wants, and rely on the comments made by Lieven J at paragraph [37 – 38];

‘[37] In my view that is to confuse two things. SM is undoubtedly under close supervision and control, but that is not in order to prevent her leaving. The close supervision is to meet her care needs. It does not need to be, and is not, for the purpose of preventing her leaving, because she is wholly incapable of leaving, both because of physical inability but also because she is unable to form any desire or intent to leave. It is simply not a concept of which she has any consciousness.

[38] On a conceptual level it is difficult to see how one can be deprived of something that one is incapable of doing. Equally, how can one be deprived of a right that one is incapable of exercising, not through the actions of the State or any third party, but by reason of ones own insuperable inabilities.

Further, an issue which was not directly considered by Lieven J in her judgment was the decision of the European Court of Human Rights in the case of HL v United Kingdom 45508/99 [2004] ECHR 471. In this case, the ECHR concluded at [91],

‘Turning therefore to the concrete situation, as required by Ashingdane, the Court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained

Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary is, in the Court’s view, fairly described by Lord Steyn as “stretching credulity to breaking point” and as a “fairy tale”.

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