HC (A Minor : Deprivation of Liberty), Court of Appeal - Family Division, November 05, 2018, [2018] EWHC 2961 (Fam)

Resolution Date:November 05, 2018
Issuing Organization:Family Division
Actores:HC (A Minor : Deprivation of Liberty)
 
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Neutral Citation Number: [2018] EWHC 2961 (Fam)

Case No: LS 18 C 00477

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Coverdale House

East Parade, Leeds, LS1 2BH

Date: 5th November 2018

Before :

William Tyler QC, sitting as a Judge of the High Court

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B e t w e e n :

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Ms Semaab Shaikh (instructed by local authority solicitors) for the local authority

Michael George (of JWP Solicitors) for the child

Hearing date: 28th August 2018

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Page 2

I direct that, pursuant to CPR PD 39A para 6.1, no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.

This anonymised version of the judgment is authorised for publication.

William Tyler QC, sitting as a Judge of the High Court:

Parties, applications and parties' positions

  1. HC has just turned 13 years of age. I shall refer to his parents in this judgment as, respectively, M and F, and to his brother as B. HC currently lives in a residential unit in Yorkshire (``the unit''). By application dated 18th July 2018, the local authority responsible for HC's placement (``the LA'') asks that the court determine whether HC's placement constitutes a deprivation of his liberty and, if this question is answered in the affirmative, for authorisation, by way of declaratory relief pursuant to the inherent jurisdiction. The allocated social worker I shall refer to as SW, the acting residential manager of the unit as RM and HC's children's guardian in these proceedings as ``CG''.

  2. The LA has been represented before me by Ms Semaab Shaikh, counsel, and HC, through CG, by Mr Michael George, solicitor. I am grateful to both for their assistance and written and oral submissions. Neither M nor F have chosen formally to participate or to be represented, although CG has helpfully obtained and communicated to the court their views.

  3. Although the LA brings the application, it does not assert a position one way or the other in relation to whether HC's placement at the unit constitutes a deprivation of his liberty. Exploring this rather unusual position with Ms Shaikh, I was told that the LA sought only to present the facts to the court and to leave it to me to adjudge whether the particular regime and its inherent restrictions constitutes a deprivation of liberty. In the event that I do so find, the LA seeks authorisation of the deprivation as being necessary and proportionate.

  4. Perhaps unsurprisingly, M and F expressed no view to CG in relation to whether HC's placement represented a deprivation of his liberty, properly so described. Rather more importantly, both were reported to agree with HC remaining at the unit and with the current arrangements for his care.

  5. On behalf of HC, CG asserted that HC's accommodation at the unit and the regime of restrictions imposed upon him did indeed cross the threshold of Article 5 of the European Convention on Human Rights (``ECHR''). CG agrees with the LA that, in such event, the deprivation should be authorised as being `necessary and proportionate in order to ensure [HC]'s ongoing safety and to promote his continuing development'.

    Background

  6. I need not set out in any detail HC's early years.

  7. HC was removed from his parents' care in July 2016. After a period of assessment in another residential unit, he was first accommodated at the unit in December 2016, aged 11. He has remained living there at all times since then. Initially, his accommodation at the unit was underpinned by his parents' consent and the corresponding duty of the LA pursuant to s.20 of the Children Act 1989 (``the CA 1989''). However, in early 2017, both HC and his brother, B, were the subject of care proceedings brought by the LA under Part 4 of the CA 1989. In February 2017, HC was made the subject of an interim care order. The proceedings concluded on 12th July 2017, when Mr Justice Hedley made a final care order in relation to HC, at the same time finding that HC's accommodation at the unit constituted a deprivation of his liberty for the purposes of Article 5 ECHR. I have not been supplied with a transcript of the judgment of Hedley J, despite my having asked for this at a directions hearing a few weeks ago, and so I know no more of the learned judge's reasoning than that it is recorded in the recitals to the order of 12th July 2017 that:

    Article 5 was also considered. Deprivation of liberty was determined on the basis that the internal doors at the placement were locked and [HC] has no access to the fob required to open them.

  8. Significant to the current application is the fact that HC has long been diagnosed with autism, attention deficit hyperactivity disorder (``ADHD''), dyspraxia and attachment disorder. He takes a range of medication to manage his mood and his behaviour and to support his sleeping and bladder problems. He has exhibited a range of behavioural difficulties over a number of years. He is described by staff who know him as being very active, capable of being charming, and generally well-mannered, polite and smiley. On various occasions, however, when his behaviour has been challenging and disruptive, he has damaged property and has placed himself and others at risk. Over recent months there has been a reported improvement in episodes of acute mental health difficulties, self-harming, attention-seeking behaviour and damage to property. HC responds well to clear and consistent routines and boundaries and, while he struggles to cope if these routines change unexpectedly, this has been less of a problem over the last few months.

  9. Informative, although by no means anywhere near determinative, is the fact that none of the other young persons resident at the unit has currently been deemed to be deprived of his or her liberty and so the subject of the declaratory authorisation regime which is underway for HC. A number of those young persons are older than HC. All will be subjected to at least some of the safeguards and restrictions which define HC's life, although, rightly, I know nothing more of the detail of the lives, characteristics or particular arrangements for any of the other residents.

    HC's day-to-day regime

  10. HC attends a local school for children with complex needs. He is progressing well and meeting his current targets. He is gradually building and sustaining positive friendships with staff and peers. Staff consider that he has flourished, has enjoyed his time at school, and is making advances both in emotional maturity and literacy.

  11. SW, in her statement in support of the application, set out a number of `identified restrictions' imposed on HC at the placement. From this, and the statement I directed be filed by the residential manager of the unit, RM, I extrapolate and collate the following key features:

    a. Restricted freedom of movement:

    The external doors of the unit are locked in order to prevent the young persons who live there from leaving unnoticed. Exit is possible only by use of key-fobs in the possession of staff members. RM indicated that there is nothing to stop HC from asking to leave the unit at any time, whether to access the garden or the community more widely, but that any such trip would take place under staff supervision. His ability to go out into the garden for a kickabout is said to be `unlimited'.

    HC is allowed only restricted access to the kitchen, due to his limited understanding of the risks associated with hot water, hobs and ovens, knives and other sharp implements etc.

    HC's bedroom door is locked at night-time, but this is from the outside only (i.e. preventing others from entering) and does not prevent him from leaving the room freely.

    b. Supervision, support and control:

    Due to HC's various vulnerabilities and unpredictable behaviour, he requires constant supervision when out in the community. A further purpose of this supervision is to protect him from what is assessed to be a particular vulnerability to strangers who might pose a risk to him which he would not comprehend or predict.

    When in the unit, he is, as described in SW's first statement, `under constant supervision and control at all times to ensure his safety and wellbeing'. This takes the form of the presence of a familiar member of staff, who also assists HC with his personal care.

    RM described HC as receiving 1:1 staffing, which is `eyes on', in the sense that during waking hours, and apart from various personal care activities, he must be within sight of a staff member. This does not prevent his participation in such activities as football or board or computer games with peers.

    c. Imposition of routine:

    The unit houses 8 young persons. Meal times are standardised for all. Certain other routines are in place. During the week in term-time, HC attends school. He has a set bedtime.

    HC has contact with his parents and brother for four hours every weekend. During such times, his parents ensure his welfare and safety, so no staff presence is required.

    d. Restricted access to social media and the internet:

    HC's use of the internet and communication by social media is `closely monitored, so that it is being used appropriately and in accordance with the law'.

    e. Restricted access to money:

    HC is described as having a `limited concept of his financial situation or in regards to money'. Accordingly, his allowance is `managed and controlled by staff', who provide support to HC in making sensible choices as to the purchase of items such as clothing and toiletries.

    f. Physical restraint:

    On the relatively few occasions on which HC's behaviour has become unregulated such that he has posed a risk to himself or to others, staff have resorted to physical restraint. Staff are trained in `Team Teach' intervention methods, which are explicitly designed to de-escalate difficult situations...

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