CGM v Luton Council

For a child’s placement to amount to a deprivation of liberty under Article 5, the objective question is assessed by comparing 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. Where confinement is at least arguably established in accommodation that is not approved secure accommodation, authorisation and judicial review safeguards are required. If a local authority declines to seek authorisation, habeas corpus is the appropriate procedure. The Family Division may modify the ordinary habeas corpus process so that it can determine whether a deprivation of liberty exists, authorise it if necessary, and grant consequential declaratory relief. Judicial review is a remedy of last resort and is unsuitable where the central issue is factual and may require oral evidence.

The claimant, the father of NM, sought permission to challenge Luton Council’s failure to apply for authorisation of NM’s placement at a secure residential school and for annual judicial reviews. NM was aged 12, autistic and had ADHD. The claimant alleged that the restrictions imposed at the school amounted to a deprivation of liberty and also raised issues concerning family contact.

The Council disputed that NM was deprived of her liberty, relying on the restrictions ordinarily imposed on a child of her age. It also disputed the appropriateness of judicial review and argued that contact issues should be pursued under Children Act 1989, section 34. The central issue was the proper procedure for determining whether NM’s placement arguably constituted a deprivation of liberty where the local authority would not seek authorisation.

1. Disposition. The judicial review proceedings were stayed. The claim form was treated as an application for a writ of habeas corpus and transferred to the Family Division. The court directed the filing of affidavit evidence and authorised NM’s deprivation of liberty on an interim basis, if and to the extent that her placement amounted to one.
2. Article 5 test. The three components identified in Storck v Germany (2006) 43 EHRR 6 are confinement in a particular restricted place for a non-negligible period, lack of valid consent, and attribution of responsibility to the state. Components (b) and (c) were agreed. The live issue was the objective component.
3. Comparator for a disabled child. Applying Cheshire West and Chester Council v P [2014] UKSC 19, [2014] AC 896, and Re A-F (Children) [2019] Fam 45, the appropriate comparator was a child of NM’s age and maturity who did not share her diagnoses. Whether the restrictions constituted confinement was a question of fact, although the legal test was fixed. Given the secure setting, constant supervision and extensive restrictions, confinement was at least arguable.
4. Procedure. The factual issue was unsuitable for determination in judicial review proceedings because oral evidence might be required and judicial review is a remedy of last resort. The court held that habeas corpus provided the more convenient and just route. The claimant had standing under CPR 87.2(3), as confirmed by Justice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477.
5. Modified habeas corpus process. Under Family Procedure Rules 2010, rule 12.42A(1)(b), the ordinary process could be modified to permit the Family Division to determine the legality of the detention and, if necessary, cure the illegality through its inherent jurisdiction rather than simply ordering release. This procedure was preferable to judicial review following the 2015 procedural changes, notwithstanding S v Knowsley Borough Council [2004] EWHC 491 (Fam), [2004] 2 FLR 716.

First-instance decision. The judgment itself records no prior appellate decision in the same proceedings.