Can a child be deprived of their liberty?

In the recent case of RK v BCC [2011] EWHC Civ 1305 the Court of Appeal has importantly clarified, following a heavily criticised decision of Mr Justice Mostyn in the Court of Protection, that the provision of accommodation to a child under section 20 of the Children Act 1989 (CA) can amount to a deprivation of liberty.

Background

The case concerned RK, a minor at the time of her appeal, who was accommodated at a care home under section 20 of the CA. The issue arose as to whether RK was being deprived of her liberty in the care home. Mostyn J held that due to section 20(8) of the CA, which states that any person with parental responsibility may remove the child from the accommodation at any time, the provision of accommodation to a child under section 20 of the CA will not ever give rise to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights (ECHR).

Judgment

RK appealed to the Court of Appeal and the case came before Thorpe LJ, Gross LJ and Mrs Justice Baron. There had been considerable criticism of Mostyn J’s decision and the Bar, which the Court of Appeal agreed with, were of the consensus that the decisions of the European Court of Human Rights in Neilson v Denmark [1988] 11 EHRR 175 and of the Court of Protection in Re K [2002] 2 WLR 1141 demonstrated that an adult with parental responsibility may impose, or authorise others to impose, restrictions on the liberty of a child; however, such restrictions must not in total amount to a deprivation of liberty. Paragraph 14 of the judgment states:

deprivation of liberty engages the Article 5 rights of the child and a parent may not lawfully detain or authorise the deprivation of liberty of a child”.

It was noted by the Court of Appeal that RK’s parents had clearly consented to the placement and therefore the key point for the Court to determine was whether the placement itself constituted a deprivation of RK’s liberty.

It was held that the restrictions, either individually or cumulatively, did not amount to a deprivation of liberty as they did not exceed what was reasonably required to protect RK from harming herself or others. Thorpe LJ commented that the parents’ case was that home care was impossible without an extensive supportive care package, and therefore wherever RK was accommodated she would require the same restrictions on her liberty. In addition to this Gross LJ stated that this conclusion can be reached adopting a “pragmatic approach” taking “full account of all the circumstances”.

Consequently, it was held that Mostyn J had reached the correct conclusion, although his reasoning was brought into question, and the appeal was dismissed.  

Comment

This judgment is particularly important for local authorities, health and independent care providers accommodating children. It is essential that all children accommodated under section 20 agreements are individually reviewed to determine whether their situations amount to a deprivation of liberty. Legal authorisation (of the Court or for example under the Mental Health Act 1983) will be required where a child is being deprived of their liberty.

Whilst in practice the circumstances when a child will be classed as being deprived of their liberty is arguably rather limited due to the pragmatic approach adopted by their Lordships, recent case law has highlighted that the consequences for organisations that get this wrong may be serious and costly.

If you have any queries regarding mental health law generally or would like to take advantage of our training packages regarding the deprivation of liberty safeguards then please contact Rebecca Fitzpatrick on rebecca.fitzpatrick@hilldickinson.com or Sharon Thomas sharon.thomas@hilldickinson.com.


Hill Dickinson out of hours helpline: +44 (0)7715 376624

This e-shot is provided for general information only. It is not intended to constitute legal advice and should not be used as a substitute for legal advice.

    
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