LB Barking & Dagenham v A (Therapeutic Residential Placement)

When deciding whether a child should remain in a therapeutic residential placement or return to parental care, the court must undertake a full comparative welfare evaluation of the realistic options. The child’s welfare remains paramount, and the evaluation must have regard to proportionality under Art 8(2) of the ECHR.

A child’s wishes and feelings are one factor in the welfare checklist. Even mature wishes carry no presumption of precedence, and their weight depends on the child’s age and understanding. A deprivation of liberty must be assessed by applying the relevant Art 5 criteria directly to the child’s concrete circumstances.

The London Borough of Barking & Dagenham sought a final care order for N, an 11-year-old child with highly complex emotional, behavioural and medical needs, and a declaration that his therapeutic residential placement lawfully deprived him of liberty for the purposes of Art 5 of the ECHR.

N’s mother opposed the applications and sought his return to her care. The Children’s Guardian supported continued residential care. The central questions were whether continued placement was in N’s best interests and whether the restrictions at the placement amounted to a lawful deprivation of liberty.

1. Welfare decision. The threshold under Children Act 1989, s 31(2), was met. The court’s task under s 1 was to determine which available option best met N’s welfare needs, treating his welfare as paramount and considering the statutory checklist.
2. The court undertook the required comparative welfare analysis of returning N to his mother and continuing his therapeutic placement. Although the relationship with his mother was important, the evidence established that she could not presently meet his complex needs or protect him from the identified risks. The placement provided stable, specialist and therapeutic care and had enabled substantial progress. Continuation of the placement was therefore plainly in N’s best interests and proportionate under Art 8(2) of the ECHR.
3. N’s wishes and feelings did not determine the outcome. They had to be assessed by reference to his age and understanding and weighed with the other welfare factors.
4. The restrictions at the placement satisfied the Art 5 test. N could not consent, was subject to continuous supervision and control, and was not free to leave. Applying Storck v Germany and Cheshire West and Chester v P, the arrangements constituted a deprivation of liberty. The court declared that deprivation lawful.
5. The court made no factual findings concerning a serious restraint incident, because further civil proceedings might arise. It nevertheless recorded concern about the extent of restraint, the use of handcuffs and leg restraints, and the apparent disagreement between professionals during the incident.
6. A final care order was made on the approved amended care plan. The court did not make an order regulating contact under s 34, but stated that it could identify no welfare basis for opposing one-hour fortnightly contact if N wished to continue it.