An NHS Trust v ST & Ors.

An order under the inherent jurisdiction authorising a child’s deprivation of liberty requires both an engagement of Article 5 of the European Convention on Human Rights and a conclusion that the arrangements are in the child’s best interests. Resource shortages cannot justify authorising a placement that is manifestly unsuitable, harmful and fails to meet the child’s needs. Where authorisation is refused, the responsible local authority must secure suitable accommodation and safeguard and promote the child’s welfare. Public authorities must also act consistently with Convention rights and bring unlawful deprivations of liberty before the court promptly.

An NHS Trust sought authorisation under the inherent jurisdiction for the deprivation of liberty of ST, a 14-year-old child with autism, moderate learning disability and complex challenging behaviours. ST had been admitted to a general paediatric ward solely as a place of safety and was subject to continuous supervision, restraint and restrictions on leaving. The placement had operated for over a month without judicial authorisation.

The central issue was whether authorising the regime was in ST’s best interests, notwithstanding the absence of an immediately available alternative placement. The court also considered whether an interim care order should be made in favour of Manchester City Council.

1. The court dismissed the NHS Trust’s application for authorisation. Although ST’s circumstances constituted a deprivation of liberty for Article 5 purposes, the proposed regime was manifestly not in her best interests.
2. An inherent-jurisdiction authorisation may be granted only where the arrangements amount to a deprivation of liberty under Article 5 and authorisation is in the child’s best interests. The Article 5 analysis incorporated the three elements identified in Storck v Germany: confinement, absence of consent and imputability to the State. The Cheshire West acid test was also satisfied because ST could not consent, was subject to continuous supervision and control, and was not free to leave.
3. Best interests remained the paramount consideration. The hospital ward was not designed or equipped to meet ST’s autistic and learning-disability needs. The repeated physical and chemical restraint, changing personnel, lack of privacy, absence of educational provision and absence of a clear exit plan made the regime positively harmful. The shortage of suitable placements could not justify authorisation, even as an interim safety measure, because the evidence did not establish that the placement was keeping ST safe.
4. The court reaffirmed that refusal of authorisation does not discharge the State’s responsibilities. As a looked-after child, ST was entitled to accommodation capable of meeting her needs and to safeguarding and welfare promotion under Part III of the Children Act 1989. Articles 2, 3 and 8 of the Convention imposed corresponding positive obligations, and section 6 of the Human Rights Act 1998 prohibited incompatible conduct by public authorities.
5. The court remained unconvinced that the oral tranquilising medication, administered for restraint rather than treatment, fell outside the requirement for authorisation merely because it had been used for a short period. That issue required further consideration.
6. An interim care order was made under section 38(2) of the Children Act 1989, on the local authority’s undertaking to issue care proceedings forthwith. There was no order as to costs. The court directed evidence explaining the local authority’s and Trust’s failures and delay.