AB (A Child : deprivation of liberty), Re

A child’s placement is a deprivation of liberty where, viewed in the concrete circumstances, he is under continuous supervision and control and is not free to leave. The child’s compliance, the ordinary character or comfort of the placement, and its welfare purpose do not alter that conclusion. A parent’s ability to consent depends on the facts and the proper scope of parental responsibility. Where a child is subject to an interim care order or care order, parental consent will be extremely unlikely to suffice, and a local authority cannot consent because it acts as an organ of the state. Section 25 of the Children Act 1989 is not a general authorisation mechanism. The High Court may authorise the arrangements under its inherent jurisdiction where the requirements of section 100(4) are met.

The local authority sought permission to invoke the inherent jurisdiction and authorisation for AB, aged 14, to remain at a children’s home under an interim care order. The parties agreed that his arrangements involved significant supervision and restrictions, but the court had to determine whether they amounted to a deprivation of liberty, whether parental or local-authority consent could make them lawful, and which statutory or inherent powers were available.

AB had a moderate severe learning disability and attention deficit hyperactivity disorder. He was continuously supervised, observed, accompanied outside the home, and prevented from leaving independently. The central issues were whether the Cheshire West approach applied, whether consent was effective, and whether the placement could be authorised under section 25 or the inherent jurisdiction.

1. Deprivation of liberty. Applying the criteria in Cheshire West, the court held that the assessment is fact specific and concerns the concrete situation of the individual. AB was under continuous supervision and control and was not free to leave in the relevant sense. His occasional permitted outings, settled demeanour, and satisfaction with the placement did not prevent the arrangements from amounting to a deprivation of liberty.
2. Consent. The ability of parents to consent depends on the facts and the zone of parental responsibility. A short-term, beneficial placement agreed cooperatively with the local authority may fall within that zone. Where a child has been removed under section 20 as a prelude to care proceedings, parental consent will rarely do so. Where the child is subject to an interim care order or care order, the reasoning applies with greater force.
3. Local-authority consent. A local authority cannot consent to the deprivation because, in taking a child into care and conducting care proceedings, it acts as an organ of the state. Article 5 requires a lawful basis, proper safeguards, and periodic independent review.
4. Available powers. Section 25 of the Children Act 1989 was not an appropriate mechanism. Secure accommodation has a punitive quality, AB did not meet the statutory criteria, and the home was not registered as secure accommodation. A care order itself could not implicitly authorise the deprivation, since local-authority reviews were insufficiently independent for Article 5 purposes.
5. Authorisation. The court granted permission under section 100(4) and authorised the deprivation under the inherent jurisdiction for three months. It was satisfied that no other order could achieve the result and that, without authorisation, AB would face likely significant harm because he would have to leave a placement in his welfare best interests. The guidance given was that any deprivation must cease when its justification or the statutory criteria no longer subsisted.

High Court (Family Division). First-instance decision. The judgment records that the issue of AB’s deprivation of liberty was transferred to the High Court on 1 June 2015 and came before the court for directions on 2 June 2015.