U (A Child: Deprivation of Liberty), Re

The High Court may use its inherent jurisdiction to authorise the deprivation of a looked-after child’s liberty in a registered children’s home where approved secure accommodation is unavailable and imperative necessity is established. The court must first determine whether the arrangements amount to a deprivation of liberty under the Article 5 tests. If they do, authorisation depends on the child’s best interests, assessed holistically and realistically, with welfare paramount. Any restrictions must be necessary, proportionate and the least restrictive available. Physical restraint must be a last resort, use the minimum force required, and respect the child’s dignity.

The local authority applied under the inherent jurisdiction for permission to deprive U, a seven-year-old child subject to an interim care order, of his liberty in a registered children’s home. U had autism and ADHD, required constant supervision and had been physically restrained during incidents involving risks to himself and others. The Guardian supported the application reluctantly, while expressing concerns about restraint, behaviour management, education and the suitability of the placement.

The central questions were whether the proposed arrangements constituted a deprivation of liberty under Article 5 of the European Convention on Human Rights and, if so, whether authorisation was in U’s best interests.

1. The application was granted. The court authorised the local authority, under the inherent jurisdiction, to deprive U of his liberty in his current registered children’s home as a stop-gap placement until 14 March 2024, subject to review.

2. Where approved secure accommodation is unavailable, the High Court may authorise the deprivation of a looked-after child’s liberty in a registered children’s home which is not approved as secure accommodation, provided that imperative conditions of necessity exist: Re T (A child) [2021] UKSC 35.

3. The court must ask whether the proposed arrangements amount to a deprivation of liberty and, if so, whether the deprivation is in the child’s best interests. The Article 5 question is assessed by the acid test in Cheshire West and Chester Council v P [2014] UKSC 19: inability to consent, continuous supervision and control, and lack of freedom to leave. The comparison is with the ordinary life of a typical child of the same age, background and maturity whose freedom is not restricted.

4. The court also applied the three-part approach in Storck v Germany [2005] 43 EHRR 6, namely objective confinement for a non-negligible period, lack of valid consent, and attribution of responsibility to the State. The arrangements satisfied that test because U was constantly supervised and controlled, restrained when necessary to prevent harm, and placed in accommodation selected and funded by the local authority.

5. The best-interests assessment required a holistic and realistic evaluation of welfare, including the likely consequences of making or refusing the order. The imperative-necessity conditions formed part of that assessment. On the available evidence, limited realistic alternatives existed and authorisation was in U’s best interests and represented the least restrictive option.

6. The order authorised supervision in the community at a ratio of 2:1, 1:1 supervision in the home and physical restraint where necessary to safeguard U or prevent a serious risk to U or others. Force or restraint had to be used as a last resort, with the minimum degree required, and had to be least restrictive, proportionate, safety-focused and respectful of U’s dignity. Any more restrictive change to the care plan not required by imperative necessity required urgent review before implementation.