TRAFFORD BOROUGH COUNCIL v B & Ors

Applications under the inherent jurisdiction for declarations authorising a child’s deprivation of liberty must be issued promptly where the child is subject to significant restrictions. The child should be joined urgently so that independent legal representation and a Children’s Guardian can be arranged for the first hearing. Delay risks uncertainty about the legal basis for the deprivation and removes an important safeguard for the child’s participation. Any authorised regime must protect the child’s welfare while using the least restrictive measures, proportionate force or restraint, and measures respecting the child’s dignity.

The local authority applied under the inherent jurisdiction for authorisation of the deprivation of liberty of X, aged 14. X had remained in hospital after the expiry of her detention under section 2 of the Mental Health Act 1983, while a suitable therapeutic placement was sought. She was subject to intensive supervision, physical restraint and occasional chemical restraint.

The court made interim deprivation-of-liberty orders and later authorised a bespoke placement. The judgment considered the delay in issuing the application, the need for X to be joined and separately represented, and the appropriate safeguards for the continuing order. The parties advanced competing submissions about the legal framework governing the intervening period, but no separate claim under the Human Rights Act 1998 was before the court.

1. Prompt issue and joinder. Applications for declarations authorising a child’s deprivation of liberty should be issued without delay where the child is plainly subject to a deprivation of liberty. Hospitals and local authorities should agree procedures identifying who bears primary responsibility for issuing the application.
2. Once issued, the applicant should request the child’s immediate joinder as a party and explain briefly why the application requires urgent consideration. Delay is detrimental because it may leave uncertainty about the legal structure of the deprivation and deprive the child of an effective voice through separate representation and a Children’s Guardian.
3. The court declined to determine the disputed legal framework governing the period between expiry of X’s detention under section 2 of the Mental Health Act 1983 and the first court order. In the absence of a claim by X under the Human Rights Act 1998, there was no formal structure before the court for determining that issue.
4. The continuing deprivation-of-liberty order was necessary to protect X and meet her welfare needs. The local authority and its agents were required to use only measures that were the least restrictive of X’s rights and freedoms, proportionate to the anticipated harm, no greater than required for X’s safety and that of others, and respectful of her dignity.
5. The order was continued in the same terms as the previous order. It retained the support of X’s mother, grandmother and Children’s Guardian.