The Court of Appeal handed down judgment on 30 November 2011 in relation to RK, a disabled child accommodated in a care home by the local authority. The case will be of particular interest to clients as the court provided guidance about the factors that will be taken into account in determining whether or not someone accommodated under section 20 Children Act 1989 with the consent of their parents, is considered to be deprived of their liberty in relation to Article 5 of the European Convention on Human Rights.
RK was a minor, accommodated in a care home under a section 20 agreement between her parents and the local authority. RK was unable to communicate but appeared to be very upset in her placement and had stopped eating. RK's mother, YB, brought an application, on RK's behalf, to have her best interests determined.
The matter first went to court in September 2009 when District Judge Walton granted YB permission to proceed and ordered a section 49 report. Subsequently, in November 2009 he appointed the Official Solicitor (OS) as RK's litigation friend.
At a directions hearing in June 2010, the OS asserted that the current care plan and arrangements might constitute a deprivation of liberty so his Honour Judge Cardinal therefore transferred the case to a High Court judge.
The preliminary hearing took place in December 2010 before Mr Justice Mostyn. He declared that, given the terms of section 20(8) Children Act 1989, the provision of accommodation to a child, whatever their age, under sections 20(1)), (3), (4) or (5) could not ever give rise to a deprivation of liberty under Article 5. He also found that although RK's parents had consented to restrictions being placed on her liberty following her reception into s.20 care, those restrictions did not amount to detention.
RK, through her litigation friend, appealed the High Court’s decision.
Can an adult with parental responsibility authorise restrictions on their child's liberty?
Lord Justice Thorpe offered some helpful guidance on the interplay between section 20(8) Children Act 1989 and Article 5.
He found as a matter of fact, that RK's parents had consented to her placement in the care home. He referred to the decisions of the European Court of Human Rights in Nielsen v Denmark (1988) and Re K (2002) and concluded that:
- an adult can exercise their parental responsibility to impose (or authorise others to impose) a restriction on the liberty of their child; but
- the restrictions must not, in their totality, amount to a detention, as detention engages the child's Article 5 rights; and
- a parent may not lawfully detain or authorise the detention of a child.
Did the restrictions authorised by RK's parents, individually or cumulatively amount to a detention?
Thorpe LJ upheld the decision of Mostyn J, that the measures taken to restrict RK did not amount to a detention and thus was not a deprivation of liberty under Article 5. The measures included:
- steps to prevent RK attacking others in the home;
- supervision; and
- ensuring that RK took her medicine.
They were no more than what was reasonably required to prevent RK harming herself or others around her and were required to discharge the duty of care.
His reasoning for delivering a short judgment was that the appeal appeared to be academic as, by the time of the hearing RK had achieved her majority and had been moved to adult supported accommodation.
This case provides a helpful indication of the court's stance for those involved in decision making about the placement and care of children who might be deprived of their liberty as a result of a section 20 agreement with the child’s parents.
The case confirms that parents are able to authorise restrictions on their child's liberty provided it does not result in detention and that a "normal" care package designed to protect the child from harming his or herself and others does not amount to a detention.
It is important to note that the case does not indicate that any child who might be receiving accommodation and a care package under section 20 Children Act 1989, with the permission of the parents, will automatically be exempt from a deprivation of liberty. Decision makers must always consider the degree and intensity of any restrictions in place. Each case must still be decided on its own facts.
This remains a complex and fast-moving area of law. We would be delighted to organise training on the subject of deprivation of liberty or the Mental Capacity Act more generally.
In the meantime, please do refer to our Healthcare Resource Centre for guidance on these and related healthcare law topics.