A Local Authority v A (A Child)& Anor

Article 5 is not engaged merely because a child or incapacitated adult lacks capacity, is supervised, or has a bedroom door locked at night. The court must examine the concrete situation, including the setting, type, duration, effects and manner of the restrictions. A loving and proportionate family regime imposed to safeguard welfare may be a restriction on liberty rather than a deprivation.

A local authority that knows or ought to know of an arguable deprivation must investigate and, where appropriate, provide support or seek judicial authorisation. Those duties do not give it power to control or coerce family carers without specific statutory authority or a court order.

Two linked first-instance proceedings concerned a child, A, and an incapacitated adult, C. Both had Smith Magenis Syndrome and lived at home with devoted family carers. Their bedroom doors were locked at night because of serious risks arising from their behaviour and sleep disturbance.

The local authority sought declaratory relief concerning whether the arrangements amounted to a deprivation of liberty under Article 5 of the Convention and whether the State was responsible through the authority’s involvement. The central issues were the local authority’s duties and powers, State responsibility, and the objective and subjective elements of deprivation of liberty.

Declarations made. Neither A nor C was being deprived of her liberty within Article 5. The proceedings had properly fulfilled their purpose. No further relief was required.

1. The court adopted the three cumulative requirements for a deprivation of liberty: objective confinement in a limited place for a non-negligible period; absence of valid consent; and State responsibility. Both A and C lacked capacity to consent, so the subjective element was satisfied. The local authority’s involvement did not make the State responsible. It provided support and services, knew what occurred in the homes, and had included the arrangements in its assessments and care plans, but it had not made the decisions or taken active steps to implement them. Mere knowledge or support was insufficient.
2. Article 5 nevertheless imposed positive obligations where a local authority knew or ought to know that a vulnerable person was subject to private restrictions arguably amounting to a deprivation. The authority should investigate, consider the objective and subjective elements, provide reasonable and proportionate support where appropriate, and seek the court’s assistance if necessary. Those obligations did not confer power to regulate, control, compel, restrain, confine or coerce. Specific statutory authority or judicial sanction was required, subject to immediate protective action for threats to life or limb followed by an application to the court.
3. Under the Children Act 1989, A was a child in need receiving services while living with her family. The local authority had no parental responsibility and no power to remove her without an emergency protection or care order. In the adult case, the relevant social-care legislation likewise conferred no general coercive power. Judicial assistance was ordinarily required before controlling or restraining a vulnerable adult.
4. The objective element was not satisfied. Applying the concrete-situation approach in Re MIG and MEG [2010] EWHC 785 (Fam), and considering the family setting, the type, duration, effects and manner of the restrictions, the night-time bedroom arrangements were proportionate safety measures rather than deprivation. The bedrooms were part of loving family homes; A and C were checked, and their parents responded if they wished to come out. The fact that the doors were locked and that both lacked capacity did not alter the conclusion.
5. The court did not need to decide whether Neilsen v Denmark (1988) 11 EHRR 175 justified the arrangements through parental responsibility. The court expressed doubts about that approach and left the issue for a case in which it arose. A proposed safe-space arrangement for A was left to her mother’s parental responsibility. There was no order as to costs.

First-instance linked proceedings. The judgment records preliminary directions by Coleridge J and a permission order by a District Judge in C’s case, but no appellate history is stated.