Hertfordshire CC v K (Deprivation of Liberty)

A deprivation of liberty assessment must ordinarily address the child’s actual circumstances at the time of the application. A contingent care plan, intended to be implemented only if the child’s behaviour later deteriorates, will not ordinarily justify an anticipatory deprivation of liberty order. Such orders are exceptional because they risk transferring to a local authority the independent assessment required by Art 5 of the ECHR. If an order is sought before the proposed regime has been implemented, the court will require cogent evidence that the regime will in fact be applied, rather than speculative evidence of a possible future need.

Hertfordshire County Council applied under the inherent jurisdiction for a deprivation of liberty order in respect of AK, a 16-year-old with ADHD, conduct disorder, a history of self-harm, suicidal ideation, absconding and offending.

AK was living in a semi-independent placement with unlocked doors, unsupervised contact, unrestricted telephone and internet access, and no current self-harm. The local authority nevertheless sought an order based on a more restrictive care plan which might be implemented if AK’s behaviour deteriorated. The Children’s Guardian opposed the application, arguing that the current regime did not satisfy the deprivation of liberty test and that a contingent order was inappropriate.

1. Application dismissed. The current arrangements did not amount to a deprivation of liberty under Art 5 of the ECHR.
2. The court applied the acid test identified in Cheshire West and Chester v P: whether the person is subject to continuous supervision and control and is not free to leave. AK was not actively prevented from leaving, could leave for cigarettes and unsupervised contact, had unrestricted access to his telephone and the internet, and had significant access to the community. His supervision and 15-minute room checks therefore did not sufficiently differ from the ordinary freedom of a child of his age and station.
3. The assessment had to be made by reference to AK’s actual and concrete circumstances. The court relied on the approach in Guzzardi v Italy, Cheshire West and Chester v P, Re RD (Deprivation or Restriction of Liberty) and Re D (A Child).
4. There was no objection in principle to anticipatory orders under the inherent jurisdiction, but such orders were exceptional and had to be used very sparingly. A contingent order based on a possible future deterioration would deprive the court of the opportunity to make an independent assessment when the alleged deprivation actually arose. The local authority could make an urgent application if the care plan later required implementation.
5. An order might be made before a regime was implemented where there was cogent evidence that the proposed regime would in fact be applied. The speculative contingency advanced here did not meet that standard, particularly because the existing, less restrictive regime had been stable and effective.
6. The dismissal did not authorise implementation of the restrictive care plan without a further order. If the local authority later decided to implement it in full, it would need to apply to the court at that time. There was no order as to costs.