As we approach the end of #ChildMentalHealthWeek it is only fitting to write a post which touches upon one of the most critical, although often overlooked, aspects of cases in the family court which deal with children with profound mental health difficulties. This is the first part of two posts dealing with deprivation of liberty of the children by the Family Court.
Munby P. has recently handed down his decision in Re A-F (Children) [2018] EWHC 138 (Fam), the second case in recent months in which he considered how the family courts should approach the confinement of children which may, or may not, amount to a deprivation of liberty engaging Article 5. The first case was Re D [2017] EWCA Civ 1695 – it is a tome running to in excess of 50 pages with a fascinating analysis for any scholar on the development of the rights and obligations which accompany the privilege of holding parental responsibility for a child and young person. The cases, taken together, have clarified many questions which regularly arise to practitioners in the family courts. These two posts will make an effort to draw those strings together.
Background
When questions relating to deprivation of liberty arise, the starting point will often be the speech of Baroness Hale in the important case of Cheshire West. That case summarise the essential characteristics which amount to a deprivation of liberty engaging Article 5 rights, as set out by the ECtHR in Strasbourg in Storck v Germany (2005) 43 EHRR 96. As a reminder those are:
…what is the essential character of a deprivation of liberty? …three components can be derived… as follows: (a) an 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; and (c) the attribution of responsibility to the state.
One matter which has received clarity from the President following both cases, is terminology. One cannot but think that this has been a bugbear for Munby P. He makes clear (what ought to have always been clear), and practitioners would be ill-advised to ignore, that there is a distinction between ‘confinement’ and ‘deprivation of liberty’. Confinement is simply the first part of the test of considering whether there is a deprivation of liberty which engages Article 5 (Storck component (a)). Not all confinements will be a deprivation of liberty engaging Article 5 (although every deprivation of liberty will involve a confinement – a bit like the fingers and thumbs conundrum).
The question of deprivation of liberty most often concerns adults and, insofar as lawyers are concerned, will be most widely understood by those who practise in the Court of Protection. For those of us who practise in the Family Court (for whom our civil counterparts would consider that we would not know where to find Bailii or a law library) the question of deprivation of liberty as it relates to children can be somewhat of a minefield.
Is a baby in care who has no control over what he does from day to day deprived of his liberty? Is a 15 year old child who has been grounded for staying out too late? How about the profoundly autistic child who is accommodated under s.20 at a residential school? These are the questions which have been helpfully answered in the two present cases. Read on to be enlightened (or at least to see slightly more clearly through the diluted mud).
Re D [2017] EWCA Civ 1695
It is often helpful to start with the facts. D was a boy who was 16 years old at the time of the judgment. He suffers from Attention Deficit Hyperactivity Disorder (ADHD), Asperger’s syndrome and touretts syndrome. His behaviour was challenging and he was physically and verbally aggressive. He presented with anxiety and paranoid behaviours and his prescribed medications had limited effect. CAMHS admitted D informally to Hospital B at the age of 15. At that time, the matter came before Keehan J sitting as a judge of the Family Division (Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922). Keehan J found that the: (a) the regime at Hospital B subjected D to a confinement; and (b) that the parents were able to (and did) consent to the placement and that consent falls within the ‘zones of parental responsibility’. As such, the placement did not amount to a deprivation of liberty.
The matter returned before Keehan J sitting in the Court of Protection when D had reached the age of 16, which is the case subject to appeal. By this time, D had moved from Hospital B to House A. The parents continued to agree to this move (the child being accommodated with the parents’ consent pursuant to s.20 of the Children Act 1989). The question before the Court was whether D was subject to a deprivation of liberty which engaged his Article 5 rights, and if so whether that deprivation should be authorised by the court.
It was common ground that the circumstances at House A constituted an objective confinement (and therefore Storck compenent (a) was not in dispute). There was an argument, which did not make much ground, that the confinement was not attributable to the state as it was said that the parents could remove the child at any time as he was accommodated under s.20. The Court gave this little muster. The local authority had secured the placement, assessed and secured his care regime, and that it pays all the costs. Therefore, Storck component (c) could not easily assist the Court.
The main thrust of the arguments and discussions in the case turn on Storck component (b). It was argued by the local authority that there was no deprivation of liberty because the parents consented to the child being placed in the unit, and they were able to do so being his parents. It will be recalled that this argument had succeeded before Keehan J in the first of the Re D cases. Keehan J distinguished the matter in the second on the basis of the child’s age (he had now reached 16), and drew solace from the fact that various pieces of legislation including the Mental Capacity Act 2005 and the United Nations Convention on the Rights of the Child draw similar distinctions between children under the age of 16 and those who have reached it.
After a great deal of time considering the authorities dating back to 1857 (it really is a fascinating discussion [paras 50-107]) the Court of Appeal ultimately concluded that it was within the “zones of parental responsibility” for a parent of a child, who did not have the capacity to decide himself, to provide valid consent to confinement sufficient to satisfy Storck component (b).
The Court followed the domestic definition of child, which is anyone under the age of 18. The Court dismissed the approach of fixing an arbitrary age, which is what the learned judge of first instance did, of 16 after which a parent cannot consent on behalf of the child. The Court followed the principles established in the seminal case of Gillick v West Norfolk and Wisebeck Area Health Authority [1986] AC 112 that the parents can exercise parental responsibility until such time that the child attains competence to make decisions for themselves ‘Gillick competence’. The consent, therefore, of the parents to the placement of the 16 year old child who was not Gillick-competent was sufficient and there was no deprivation of liberty.
The position has been clarified that a parent of a child who is not looked after by the local authority can exercise their parental responsibility to provide valid consent (and thus ensuring any confinement is not a deprivation of liberty) up until such time that the child either reaches 18 or attains Gillick-competence. For practitioners, the effect of the decision will depend entirely on the circumstances in which the confinement is considered. One of the many occasions in which these questions arise are in respect of teenage children who a local authority may seek to place in a residential unit which would severely restrict their liberty but which is not ‘secure accommodation’ within the meaning of the relevant legislation. In such a case, the Court would have to consider whether the child is Gillick-competent and if she is, and declines to grant consent, the confinement would be a deprivation of liberty and thus would require the authorisation of the Court.
The second scenario in which practitioners may face this is in a case where the child is profoundly disabled in such a way so as not to be Gillick-competent. In such a case the consent of the parent is valid such as to avoid a deprivation of liberty.
A word of warning: this state of affairs applies only to children who are not looked after under a care (or interim care) order. In Re AB (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam) Keehan J held that where a child who is placed under a care order neither the local authority nor parents can provide valid consent to the confinement. That case was cited without comment by the Court of Appeal in Re D. In Re A-F, which will be considered in the next post, Munby P. again referred to the case of Re A-F and this time with approval; it must be taken to be the correct state of law for any cases at first instance.
Those who face these questions (particularly when acting for a local authority) should be astute to ensure that they are put before the Court; failure to do so may lead to a breach of the child’s human rights and exposure to damages.
I hope this has provided some clarity. The next post will consider the more recent decision of Re A-F which gives helpful guidance on Storck component (a) and whether a child in care, and under complete supervision and control, is thus deprived of their liberty (hint: it depends on his age). The case also provides some very helpful guidance on procedural aspects with which we should all familiarise ourselves.
Mental Health Barrister 
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