Z, Re (A Child: Deprivation of Liberty: Transition Plan)

Where a local authority seeks to use force to convey a child from home to a residential school, parental consent may not provide a sufficient legal basis if the proposed restraint exceeds reasonable parental intervention or removes independent scrutiny of proportionality. A transition involving confinement in a vehicle, continuous supervision and force may constitute a deprivation of liberty under Article 5. The court must assess confinement, absence of valid consent and state responsibility. If those elements are present, the arrangements must be authorised by law and be necessary and proportionate. The inherent jurisdiction may be invoked where no alternative statutory scheme can authorise the proposed conveyance and restraint.

The local authority applied under section 100 of the Children Act 1989 for permission to invoke the inherent jurisdiction. It sought authority to convey Z, a fourteen-year-old boy with autism, pathological demand avoidance traits, attachment disorder and severe anxiety, from his family home to a specialist residential school.

Z was expected to resist the move. The proposed five-day plan progressed from encouragement to the possible use of medication, police attendance, secure transport and physical restraint. The parties agreed that Z’s placement and reasonable force at school were covered by parental consent and statutory schemes. The central issues were whether permission under section 100 was required and whether the conveyance plan involved a lawful, necessary and proportionate deprivation of liberty.

1. Permission under section 100. There was no alternative statutory means of achieving the proposed conveyance. Section 20 of the Children Act 1989 addressed the placement, while section 93 of the Education and Inspections Act 2006 and section 550A of the Education Act 1996 addressed reasonable force at school. They did not authorise the proposed removal from the family home. Permission to invoke the inherent jurisdiction was therefore granted.
2. Limits of parental consent. Parents may authorise reasonable force in appropriate circumstances, particularly where immediate and significant harm requires action. The proposed restraint was not justified by such immediate necessity and was likely to exceed reasonable parental chastisement. The more extreme the intervention, the more dependent its legality was on the child’s age, the nature of the intervention and the risk of injury.
3. Deprivation of liberty. Applying the three components identified in Cheshire West and Chester Council v P [2014] AC896 and derived from Storck v Germany (2005) 43 EHRR 6, the worst-case plan involved confinement in a secure vehicle for a non-negligible period, absence of valid consent and state responsibility. The force used to place Z in the vehicle was indivisible from the confinement.
4. The court could not rely on Z’s consent or parental consent for the proposed arrangements. Independent judicial scrutiny was required to assess proportionality. The plan was nevertheless lawful under Article 5(1)(d) or (e), necessary and proportionate, and the least restrictive regime compatible with Z’s welfare.
5. Declarations were made that the conveyance was lawful and in Z’s best interests, and that the local authority and its agents could use reasonable restraint and force to implement the approved transition plan, subject to dignity and least-restrictive safeguards. Z ultimately travelled with his parents.

First-instance decision. No appellate history was stated in the judgment.