RK v BCC & Ors

An arrangement under which a child is accommodated with parental consent may involve restrictions on liberty, but parental consent cannot authorise a deprivation of liberty contrary to Article 5. The question is whether the restrictions, considered individually and cumulatively, cross the Article 5 threshold. That assessment is fact-sensitive and requires attention to the purpose and practical effect of the measures. Restrictions reasonably required to protect a child or others from harm, including necessary supervision and medication, will not necessarily amount to a deprivation of liberty. A pragmatic assessment must take full account of all the circumstances.

RK, represented by the Official Solicitor, appealed from Mostyn J’s decision in the Court of Protection. The proceedings concerned whether restrictions imposed while RK was accommodated by a local authority under section 20 of the Children Act 1989 amounted to a deprivation of liberty under Article 5 of the European Convention on Human Rights.

Mostyn J held primarily that accommodation under section 20 could not give rise to a deprivation of liberty where section 20(8) applied. He also held, independently, that the restrictions imposed on RK did not amount to a deprivation of liberty on the facts. The central issue on appeal was whether the restrictions, individually or cumulatively, crossed the Article 5 threshold.

1. Appeal dismissed. The Court of Appeal upheld the conclusion that the restrictions imposed on RK did not amount to a deprivation of liberty under Article 5.
2. Parental responsibility may permit a parent to impose, or authorise others to impose, restrictions on a child’s liberty. It cannot lawfully authorise the child’s detention or a deprivation of liberty. Any restrictions must therefore be assessed to determine whether, in their totality, they cross the Article 5 threshold. This consensus was supported and accepted by the court, with reference to Neilson v Denmark and Re K.
3. The parents’ consent was established on the evidence, including their signed consent to accommodation, their subsequent signed care plan, and their position that the placement was the most suitable available arrangement. Thorpe LJ considered Mostyn J’s conclusion correct, although he did not endorse all of the judge’s reasoning.
4. The decisive issue was whether the restrictions amounted to a deprivation of liberty. Thorpe LJ held that they were no more than reasonably required to protect RK and others from harm. The same protective restrictions would have been essential wherever RK was accommodated. They therefore did not, individually or cumulatively, amount to a deprivation of liberty.
5. Gross LJ agreed with Thorpe LJ and considered it unnecessary to decide the primary proposition based on section 20(8) of the Children Act 1989, because the appeal failed on the separate factual ground. He endorsed a pragmatic approach taking full account of all the circumstances, drawing on Austin v Metropolitan Police. Baron J agreed.
6. Reporting restrictions were imposed, with any application to lift them to be made on notice to the full court.

• Court of Appeal (Civil Division): Appeal dismissed on 20 December 2011 under [2011] EWCA Civ 1305. The court upheld the conclusion that the restrictions did not amount to a deprivation of liberty under Article 5.
• Court of Protection: Mostyn J’s judgment dated 21 December 2010 held that section 20 accommodation could not give rise to a deprivation of liberty in the circumstances stated, and independently held that the restrictions did not amount to a deprivation of liberty.