X (Child: Deprivation of Liberty: Lack of Placement), Re

The High Court’s inherent jurisdiction may authorise the deprivation of a child’s liberty where the proposed arrangements satisfy the objective, subjective and State-imputation elements of the Stork test, reflected domestically in the Cheshire West “acid test”. Valid parental consent does not remove the need for authorisation where the child lacks capacity to consent.

Once a deprivation is established, the court must decide whether authorisation is in the child’s best interests. The court must apply imperative considerations of necessity, proportionality and the least restrictive approach, while considering the child’s welfare holistically. Authorisation of the deprivation does not itself authorise the placement. The court retains jurisdiction even where the placement is unregistered.

X, aged fourteen, had severe behavioural and safeguarding difficulties, including violence, self-harm, suicidal behaviour and substance misuse. Following the end of her detention for assessment under the Mental Health Act 1983, she remained in a hospital room under constant supervision because no suitable registered placement had been found.

An NHS Hospital Trust sought authorisation under the inherent jurisdiction for the existing restrictions. The local authority subsequently sought public law orders, an interim care order and authorisation for X’s transfer to, and residence in, an unregistered placement pending registration. The central issues were whether the arrangements amounted to a deprivation of liberty and whether the proposed restrictions and placement were lawful, necessary, proportionate and in X’s welfare interests.

1. Deprivation of liberty. The existing and proposed arrangements plainly satisfied the domestic “acid test”. X was confined to a defined space, subject to continuous supervision and control, unable to leave freely, unable to consent, and the confinement was imputable to the State through the Trust and local authority. The arrangements also satisfied the three elements of the Stork test.
2. Best interests and necessity. Once deprivation was established, authorisation depended on X’s welfare and best interests. The court considered the circumstances holistically and realistically. The hospital was unsuitable and could not meet X’s needs, while the local authority had identified a more suitable placement after an extensive search. The requirement of imperative considerations of necessity was satisfied, and the move was urgently required by X’s welfare.
3. Proportionality. The restrictions proposed for the transition and placement, including locked doors and windows, supervision, limits on unaccompanied activity and physical restraint when necessary for safety, were proportionate and represented the least restrictive measures presently capable of keeping X safe. The detailed transition plan required authorisation, including during transport.
4. Placement and inherent jurisdiction. Authorisation of restrictions did not authorise the placement itself. The court retained jurisdiction despite the placement being unregistered. Urgent steps were required in accordance with the President of the Family Division’s 2019 Guidance and its 2020 addendum.
5. Orders. The interim threshold under section 38(2) of the Children Act 1989 was crossed. Having regard to the welfare checklist under section 1(3), X was placed in the interim care of the local authority. The interim care plan and transition plan were approved, the requested restrictions were permitted, and the case was allocated to a local court for judicial continuity.