HC (A Minor : Deprivation of Liberty)

For a child, whether a placement amounts to a deprivation of liberty depends on the acid test: continuous supervision and control, together with lack of freedom to leave. The assessment is objective and compares the child’s actual freedom with that of a child of the same age, station, familial background and relative maturity who is free from disability. The child’s compliance, lack of objection, the benevolence of the placement and its protective purpose do not prevent a deprivation being established. Restrictions must be assessed cumulatively, rather than in isolation. Where a deprivation is established, authorisation requires the placement and restrictions to be necessary, proportionate and the least restrictive means compatible with the child’s welfare.

HC, aged 13, lived in a residential unit under a final care order. The local authority applied for a determination of whether his placement constituted a deprivation of liberty and, if so, authorisation under the inherent jurisdiction.

HC was subject to locked external doors, continuous one-to-one supervision, restricted community access, monitored internet use, controlled access to money, a structured routine and occasional physical restraint. His parents did not participate formally. The local authority took no position on whether there was a deprivation, but supported authorisation if one was found. HC’s children’s guardian submitted that Article 5 was engaged and that authorisation was necessary and proportionate.

The central questions were whether HC was confined for the purposes of the objective limb of the Storck test and, if so, whether the deprivation could lawfully be authorised.

1. Deprivation of liberty. The court applied the three-limbed test in Storck v Germany: objective confinement for a not negligible period, absence of valid subjective consent and state responsibility. Only the first limb was disputed. The lack of valid consent and state attribution were established on the evidence.
2. The objective limb was assessed using the acid test from Cheshire West: whether HC was under continuous supervision and control and was not free to leave. “Free to leave” meant free to leave permanently in order to live where and with whom he chose, rather than merely being permitted outings. The assessment required comparison with a child of the same age and familial background, taking account also of station and relative maturity.
3. HC’s restrictions were considered cumulatively. Although several individual restrictions could occur in an ordinary family setting, HC’s peers were always subject to adult “eyes-on” supervision, virtually all waking time was observed, and he could not enter the community without close supervision. These restrictions materially exceeded those affecting a typical 13-year-old. His happiness, compliance, the protective purpose of the regime and its relative benevolence were irrelevant to the objective classification.
4. The placement therefore constituted a deprivation of liberty under Article 5 of the European Convention on Human Rights. The court made a declaration accordingly.
5. The deprivation was necessary to protect HC from harm, and no less restrictive regime would achieve the same protection and welfare outcome. Foster care was not currently possible and the residential placement was in HC’s best interests. The court therefore authorised the deprivation as necessary and proportionate.
6. The placement was to remain subject to the local authority’s usual review process. A further judicial determination was required within 12 months of the application, with earlier restoration if HC’s condition materially changed or a different placement was proposed.