Depravation of Liberty orders
Added in: Court of Protection
This article will not necessarily seem on the face of it to be of direct relevance to those whose practices are strictly related to the Court of Protection and do not deal with matters involving children under the age of 16. The Mental Capacity Act 2005 applies strictly to young persons and adults aged 16 or over, but I wanted to provide an update addressing the case of Re J given that the appeal was heard not long ago on 5th February. So although it falls under the realm of deprivation of liberty in respect of children, Re J and the lead up to the appeal is hopefully captivating enough for all practitioners who regularly deal with deprivation of liberty matters.
Re J: Local Authority consent to Deprivation of Liberty [2004] EWHC 1690 Fam
At the first hearing before Mrs Justice Lieven, “J” was a 14 year old boy with multiple complex needs, including autism, ADHD, and an eating disorder which results in J trying to eat non food items (Pica). J’s parents struggled to provide him with the care he needed and therefore s.20 accommodation had been agreed. J was living in a specialist home for children, where is was subject to the following “restrictions”:
“The windows in his room have latches that can only be opened an inch; there is total supervision in the community; if J wants to go to the garden he takes his shoes to the door, the staff support him to go out fully supervised, or direct him to another activity. He is followed to the toilet, to offer support and to ensure he does not defecate on the floor. The property is Pica safe, with all small objects placed safely away from him. At night there are two waking staff to support J and the other two children in the property. He has to wear a harness in the car to prevent him getting into the footwell.” (paragraph [9]).
The application the court was dealing with was for a care order and a deprivation of liberty order and all parties agreed that the local authority needed to have shared parental responsibility for J. The question Lieven J was grappling with was whether under the exercise of its parental responsibility, the local authority would also need a deprivation of liberty order.
The short answer according to Lieven J was, no, the local authority did not need a deprivation of liberty order because it could consent to the deprivation of liberty of a child under 16 in their care. Lieven J therefore refused to make a deprivation of liberty order. Instead, the court considered that whilst J was confined to a specific place for a not negligible length of time and that the state was directly involved in J’s detention, it was the court’s view that the decision to deprive J of his liberty did not fall outside the local authority’s powers, but rather it was an exercise of the local authority’s statutory duties to J under the Care Order.
The spoiler to this story is that in February 2025 the Court of Appeal heard the appeal and decided against Lieven J’s decision. But before jumping to the Court of Appeal, it is worth stopping for a moment to reflect on the wider context in which Lieven J’s decision was made. Since the Cheshire West decision in 2014, there has been something of an explosion in the number of DoLs referrals, from 13,700 in 2013/14 to 300,765 in 2022/23 (in England). The issues following the Cheshire West decision have been widely reported and are well known (see for example, Deprivation of Liberty: the legacy of Cheshire West 10 years on https://www.communitycare.co.uk/2024/03/19/the-legacy-of-cheshire-west-10-years-on/ ; A hidden crisis: Older people and the deprivation of liberty in care homes, Age UK https://www.ageuk.org.uk/siteassets/documents/reports-and-publications/reports-and-briefings/equality-and-human-rights/deprivation_of_liberty_safeguards_report.pdf ; Councils face £100m bill for surge in legal safeguards for vulnerable people https://www.theguardian.com/society/2015/mar/24/councils-bill-deprivation-of-liverty ).
Prior to the case of Re J, Lieven J in another case, Peterborough Council v SM [2024] EWHC 493 Fam, made direct reference to the exponential growth of deprivation of liberty orders and clearly had this in mind when giving judgment. The SM case concerned a 12 year old girl with a brain disorder, epilepsy and global developmental delay. SM was non-mobile and non-verbal and the local authority applied for a deprivation of liberty order. Lieven J concluded that SM was not deprived of her liberty under Article 5 of the ECHR – SM was unable to leave the property due to her physical and mental disabilities, not because of the restrictions in place. SM was not able to leave but it was not because of any action or inaction by the state.
Paragraph [4]:
In practical terms SM cannot leave her bed of her own volition, and according to her Mother does not like sitting up. Her only body control is to be able to push her hands away and to wriggle and roll from side to side. She is moved by her carers from the bed to the floor, which according to her Mother she enjoys. She cannot communicate in any form and does not understand language. It is difficult to assess her cognitive functioning, but her Mother described her responding like a child of a few months. She does respond to stimuli, and for those who know her well it is possible to tell whether she is responding positively or negatively. All her care needs are met by carers.
Paragraph [25]:
“It is not straightforward, certainly in the more complex cases, to apply Lord Kerr's approach [in Cheshire West] in a meaningful manner. Firstly, assuming that one should compare SM with someone of "her age and station" is a difficult exercise with a child. There is no paradigm 12 year old who can be assumed to have a particular level of maturity, and therefore subject to a particular level of restraint and control. Secondly, and more fundamentally, it is a wholly unreal exercise to compare SM with another 12 year old. To the degree that such comparisons are useful, she functions cognitively in a way comparable to a baby of a few months in age and therefore, on the facts, that would be a much more useful comparator. Lord Kerr was simply not addressing the type of facts, and thus the legal issue, that therefore arises in this case.”
Distinguishing this case from Cheshire West, Lieven J notes that in Cheshire West the protected parties were physically capable of leaving the property, unlike the child in SM. Paragraph [31]:
“This is a case where the LA's application takes the principles set out in Cheshire West to a logical but extreme conclusion that, in my view, defies common sense and is not required by the terms of the Supreme Court decision. It is important to note that Cheshire West was concerned with the three individuals' inability to consent to the deprivation of their liberty, and their apparent compliance with the restraints placed upon them. They were all physically capable of leaving the property, and would have been stopped if they had tried to do so. That is not the facts of the present case.”
Emphasising the point, 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.”
So back to Re J. Lieven J considered in this case the local authority’s powers under section 33 of the Children Act 1989 and compared the core test to that in Re H (Child) [2020] EWCA Civ 664, “namely is the decision that the LA is being asked to make under s.33(3)(b) CA ‘of such magnitude’ that it cannot be made by the LA, but rather must be made by the Court.” (paragraph [31].
At paragraph [33] Lieven J continued,
“The approach that the LA can never exercise its powers of parental responsibility under s.33(3)(b) to grant valid consent for a deprivation of liberty rests on the proposition that a deprivation of liberty is necessarily a decision of such magnitude as to require the role of the court. Although logically that conclusion might flow from what Lady Hale said in Cheshire West and Re D, neither of those decisions concerned the scope of parental responsibility in respect of children under the age of 16, let alone the scope of s.33(3)(b) in decisions concerning children of that age and deprivation of liberty.”
Whilst Lieven J’s reasoning is attractive as a common sense argument, it is clear this is a very significant move away from the established case law and furthermore, this decision effectively took away protections J would be entitled to under Article 5 of the ECHR, by enabling local authorities to by-pass the protective oversight of the court and to deprive children of their liberty on a “best interests” argument.
Lieven J concluded in her judgment at paragraphs [34] and [35] that:
“Further, if one applies the test to the facts of J's case, it is in my view clear that the decision to deprive him of his liberty is an inevitable one, which no reasonable court or parent would depart from. One way of testing this proposition is to consider what would happen if the LA, or those authorised to look after J i.e. the Children's Home, did not put in place the restrictions sought. They would very obviously be in breach of their duty of care to J, given his known vulnerabilities and the manifest risks to his safety if he was allowed to leave the home unsupervised. In reality it is the obligation of any responsible carer of J to place restrictions upon him in order to keep him safe. Therefore, far from the restrictions amounting to a serious infringement of his rights that no LA could lawfully consent to, they are restrictions essential to ensuring his best interests, and indeed required by the State's positive obligations under Article 2 ECHR to protect his life. In those circumstances in my view they fall within the LA's statutory powers in s.33 CA.
Therefore the decision to "deprive him of his liberty" is not in my view a decision of such magnitude as to fall outside the LA's powers, but rather an exercise of their statutory duties to him. In my view the LA have the power to consent to the restrictions and therefore to the deprivation of his liberty, and no DoLs order is needed.”
If the Court of Appeal had agreed with Lieven J then we could possibly have been in for some very interesting and wider changes to the approach of the Court to deprivation of liberty more generally. If the local authority could be said to be acting in the best interests of P, why would any authorisation for a deprivation of liberty be required, child or adult (Mental Capacity Act 2005 aside!)?
The written reasons from the Court of Appeal are still awaited, but the appeal was heard on 5 February 2025 and is available on the Court of Appeal YouTube page, under the case name Re P (a child), the links to which can be found here https://www.judiciary.uk/live-hearings/re-p-a-child-2/ - at minute 27 and 30 seconds of Part 2 of the hearing, the Court of Appeal concludes, “it is plain that we are going to allow the appeal.” It seems there was little hesitation and the Court of Appeal’s decision was, as many had predicted, inevitable.
With the Liberty Protection Safeguards delayed indefinitely, the only way (in the shorter term at least) for changes to be made to the system of authorising deprivations of liberty could only be made through the development of case law. In this context, Lieven J’s decision could be seen as an attempt to address the issues with the system and to reduce the pressure and burden on the courts and public bodies. As stated above, this was clearly in mind when giving the judgment in SM
Paragraph [10]:
“DoLs orders have become a depressingly common matter in the Family Division of the Family Court. Over the period of 12 months something in the region of 1700 such orders have been made. The exponential growth in these orders has been referred to in numerous cases in the High Court, Court of Appeal and Supreme Court, see Re T (A Child) [2021] UKSC 2136. The enormous expansion of this area of law can be traced to two factors. Firstly, the caselaw, in particular the judgment of the Supreme Court in Cheshire West v P [2014] AC 896; and secondly the severe shortage of places in secure accommodation units, see Re T. The present case does not concern the problem of the shortage of places. It is a product of the decision in Cheshire West and the approach that has been taken to potential prospective breaches of Article 5 European Convention on Human Rights ("ECHR").”
But for now there is unlikely to be any seismic change in approach and the number of applications to the courts by local authorities is unlikely to be affected. It will be interesting to see the Court of Appeal’s reasons in Re J when they are published and to note whether there is any reference to the wider context of the pressures and difficulties that are affecting those who work in this area on a daily basis.
