A-F (Children)

For a child in care, Article 5 is engaged when the arrangements amount to a confinement. This is assessed by comparing the child’s actual restrictions with those applicable to a child of the same age, station, familial background and relative maturity who is free from disability. The comparator is not a typical child subject to a care order. There is no fixed minimum age, but confinement is unlikely at age 10, may arise at age 11, and is more readily found from age 12, subject always to the individual circumstances. A deprivation of liberty must be necessary, proportionate and authorised through an Article 5-compliant judicial process, with regular review.

These test cases concerned seven children aged between 11 and 16 who were subject to final care orders and lived in foster or specialist placements. Their arrangements included continuous supervision, restrictions on movement and, in some cases, locked environments, restraint or medication.

The cases concerned the interface between care proceedings under Part IV of the Children Act 1989 and Article 5 of the Convention. The central questions were when the arrangements constituted a deprivation of liberty, what judicial authorisation and procedural safeguards were required, and how applications and reviews should be managed.

1. Article 5. The three Storck components are confinement in a particular restricted place for a non-negligible period, absence of valid consent and state responsibility. For a child subject to a care order, state responsibility is established. Neither the local authority nor a parent can provide valid consent, and a foster carer lacks parental responsibility for this purpose.
2. The Cheshire West acid test has two separate elements: complete supervision and control, and not being free to leave permanently to live elsewhere. Locked or lockable accommodation is not determinative. Ordinary parental restrictions may restrict movement without amounting to confinement.
3. Confinement must be assessed by comparing the actual restrictions with those applicable to a child of the same age, station, familial background and relative maturity who is free from disability. The comparator is not a typical child subject to a care order. There is no fixed age threshold. As a rule of thumb, a child aged 10 is unlikely to be confined, an 11-year-old may be confined but requires caution, and from age 12 the conclusion is more readily reached.
4. A confinement is lawful only if it is necessary and proportionate, representing the least restrictive regime compatible with the child’s welfare, and authorised by a Family Division judge through an Article 5-compliant process.
5. A substantive order requires an oral hearing. The child must be a party and have a guardian where possible. A bulk application is unlawful, although separate cases may be heard together where there is significant evidential overlap. Evidence should address the regime, the child’s circumstances, necessity and proportionality, relevant views and care documents. Evidence of capacity to consent should ordinarily include suitably independent specialist evidence.
6. Care proceedings remain in the Family Court. Related inherent-jurisdiction proceedings are heard in the High Court. Local-authority review and judicial review at least every 12 months are required, with earlier review after a significant change or proposed move.

The matter was listed for a further hearing to review developments and make final orders.