Introduction
Ten years on from Cheshire West [2014] UKSC 19 (covered on this blog at the time), the seminal decision on deprivation of liberty by the Supreme Court, the Family Court faces an ever-increasing number of applications for deprivation of liberty orders for children. Two recent decisions from Mrs Justice Lieven, Peterborough City Council v SM [2024] EWHC 493 (Fam) and Re J [2024] EWHC 1690 (Fam), could curb this trend. But while these decisions emanate from the Family Court, their reasoning may be of broader interest and could prompt wider questions about Article 5 ECHR and what constitutes a deprivation of liberty.
A reminder: Cheshire West
Cheshire West consisted of two conjoined cases. One involved two sisters, MIG and MEG, who both had learning disabilities. MEG lived in a specialist NHS facility following the breakdown of a foster placement. MIG lived with a foster carer. MIG was happy with her foster carer, reportedly calling her “mummy”, and while she never tried to leave her foster carer, she would have been prevented if she did try. By contrast, MEG was sometimes subject to physical restraint and was prescribed Risperidone (a sedating antipsychotic) for occasional challenging behaviours. The other case involved a man in his 30s, P, who had Down’s Syndrome and was living in supported living accommodation with 24-hour care and 1 to 1 support when accessing the community.
The question for the Supreme Court was whether these individuals’ different living arrangements constituted a deprivation of their liberty under Article 5 of the ECHR. This ultimately required the Supreme Court to consider whether the right to liberty under Article 5 means the same thing for everyone, irrespective of any physical or mental disability.
In her lead judgment, Lady Hale affirmed the universal nature of human rights, observing that it is “axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race”. As a result, she concluded at paragraph 46:
”…what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage”.
Drawing on caselaw from the ECtHR, the Supreme Court then set out the “acid test” to determine whether living arrangements constitute a deprivation of liberty under Article 5:
- the person is under continuous supervision and control and is not free to leave;
- there is a lack of valid consent to the arrangements; and
- the deprivation of liberty is the responsibility of the state.
This “acid test” is applied daily by social workers and practitioners throughout the jurisdiction, often in adult social care settings but also increasingly in the context of children.
Deprivation of liberty and children
Section 25 of the Children Act 1989 empowers local authorities to place looked-after children who are at risk of harm in “secure accommodation” in order to restrict their liberty. However, due to a shortage of this accommodation, local authorities which seek to impose restrictions on children’s liberty are increasingly applying for orders under the inherent jurisdiction of the High Court. These “deprivation of liberty orders” allow local authorities to place children in other accommodation and still impose restrictions on their liberty – such as locked doors, supervision, and the use of restraint. There were 291 such applications between January 2024 and March 2024 alone.
When the Family Court is considering whether restrictions may amount to a deprivation of liberty, it will consider the acid test in Cheshire West and may also consider whether the proposed restrictions fall within “normal parental control” for a child of the same age: Re D [2019] UKSC 42. This involves considering how a comparator child, in the same circumstances as the subject child but without a disability, would be treated. If the restrictions would be the same for both children, the restrictions will not amount to a deprivation of liberty. If the restrictions on the subject child are different, the restrictions may be a deprivation of their liberty. Article 5 may then be engaged.
Against this backdrop, we turn to the decisions of Mrs Justice Lieven.
Peterborough City Council v SM [2024] EWHC 493 (Fam)
This case concerned a 12-year-old girl, SM, with a brain disorder, epilepsy and global developmental delay. She is reportedly non-mobile and non-verbal and lives with foster carers. The local authority sought a deprivation of liberty order, with restrictions to include 1 to 1 supervision and bars on her bed.
SM’s Guardian queried the need for a deprivation of liberty order, noting that the proposed measures were the consequences of her physical and mental disabilities and were part of her treatment. The local authority argued that the order was necessary, relying on the acid test set out in Cheshire West and the Supreme Court’s concern that this test should be of universal application.
Like the Guardian, Mrs Justice Lieven questioned the need for a deprivation of liberty order. She queried whether a comparator of a 12-year-old able-bodied child was useful in SM’s case given her disabilities and the fact that her cognitive functioning was akin to a child of a few months’ old. She concluded that SM was unable to leave the property because of her physical and mental disabilities – not because of any restrictions imposed on her, or because of any action or inaction by the state. SM was not therefore deprived of her liberty under Article 5.
More widely, she noted at paragraph 38:
“On a conceptual level it is difficult to see how one can be deprived of something that one is incapable of doing. Equally, how can one be deprived of a right that one is incapable of exercising, not through the actions of the State or any third party, but by reason of one’s own insuperable inabilities.”
Acknowledging the Supreme Court’s concern in Cheshire West that the standard for deprivation of liberty should be universal, Mrs Justice Lieven said that this could not force the court to reach a conclusion which “defies the facts and common sense”. Whilst the test was universal, the application would be different in each case, and this was not a case where she could conclude that SM was deprived of her liberty.
Re J [2024] EWHC 1690 (Fam)
Re J concerned a 14-year-old boy with diagnoses of autism, ADHD and Pica. The local authority sought a care order and deprivation of liberty order, with all parties in agreement that a care order should be made. The local authority proposed that J should remain accommodated at a specialist children’s home, with restrictions including supervision in the community and latches on windows. All parties agreed that these restrictions were necessary and in J’s best interests in order to keep him safe. The question was whether a deprivation of liberty order was also required.
Given all parties’ agreement, Mrs Justice Lieven had no hesitation in making a care order for J. However, she declined to make a deprivation of liberty order. As a result of the care order, the local authority would acquire parental responsibility for J, and she concluded that the local authority could consent to the restrictions on J’s behalf as an exercise of its parental responsibility.
In reaching this conclusion, Mrs Justice Lieven cited section 33 of the Children Act 1989, which sets out some limits on a local authority’s parental responsibility. She also noted that caselaw has recognised some decisions as being “of such a magnitude” that they should be determined by a court and not by the local authority alone. Consent to these restrictions was not such a decision: all parties agreed that they were in J’s best interests. Mrs Justice Lieven in fact concluded that the local authority would be in breach of its duty of care to J if it did not impose these restrictions. Therefore, there was no deprivation of liberty under Article 5 as the acid test in Cheshire West was not met.
Comment
It is important to stress that both these decisions concern children and are not strictly of wider application beyond the Family Court. However, the reasoning in both cases may be of broader interest and goes to the heart of Article 5, Cheshire West and the acid test for deprivation of liberty.
Taking Re J first, the effect of Mrs Justice Lieven’s decision was to remove the proposed restrictions on J from the ambit of Article 5. This could be perceived as undermining the purpose of Article 5.
Article 5 is designed to prevent the arbitrary exercise of state power, ensuring that individuals are not deprived of their liberty by the state without due process and without good reason. This purpose is arguably even more important in the case of children. If, as in Re J, all parties agree that the restrictions are necessary and the local authority can consent to them itself using its parental responsibility, this may negate the need for court involvement. But there is a certain circularity to a state body being able to sanction the use of state power, and it is inappropriate to rely on the other interested parties to safeguard the child’s rights. Court approval of the restrictions is therefore vital – even in cases such as this one – in order to protect the child.
Turning to Peterborough City Council v SM, Mrs Justice Lieven concluded that SM’s circumstances did not amount to a deprivation of liberty under the test in Cheshire West. In that case, the Supreme Court was concerned with protecting the human rights of those with disabilities and ensuring compliance with the ECHR and the UN Convention on the Rights of Persons with Disabilities. This motivation drove the Supreme Court to stress the universal nature of the acid test for deprivation of liberty. Consequently, the focus of the test is on the restrictions and their effects – not the reasons for the restrictions or the intentions of those imposing them. These are considered at a later stage, when determining whether any deprivation of liberty is justifiable.
While SM’s situation may be relatively uncommon in the Family Court, it is not rare. There are many individuals with both mental and physical disabilities who, under the current law, are deprived of their liberty as a consequence of their care plans or treatment pathways. Mrs Justice Lieven’s reasoning could cast doubt on whether that is in fact the case.
Where does this leave us? Mrs Justice Lieven was clearly concerned by the volume of applications for deprivation of liberty orders in the Family Court and directly referred to the “exponential growth” in applications in Peterborough City Council v SM. These decisions may prompt local authorities to pause and question whether they in fact need to apply for a deprivation of liberty order at all. However, both judgments raise a number of questions which strike at the heart of Article 5 and the ethos, approach and analysis of the Supreme Court in Cheshire West. Until these questions are resolved, it is likely that local authorities will only continue to make such applications.
Esme Cairns is a barrister at 1 Crown Office Row, Brighton.
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