Care home briefing 105 – Deprivation of Liberty: children

The Court of Appeal has recently considered in the case of RK (by her litigation friend, the Official Solicitor) v. BCC and others[1] the extent to which restrictions imposed by, or under the authorisation of, an adult exercising parental responsibility might amount to a deprivation of liberty. From the facts of this case it would now appear that those acting with parental responsibility who impose or authorise restrictions upon their children are unlikely to be found to be objectively depriving them of their liberty, where the restrictions are no more than what is reasonably required to protect the child from harming themselves or others.

The Facts

The proceedings concerned RK who was 17½ years old. She suffered from autism, ADHD and severe learning disabilities which led to severe behavioural problems including aggressive and self-harming behaviour. She also suffered from epilepsy and generalised tonic clonic seizures. RK had no ability to communicate verbally and only limited ability to communicate non-verbally. RK was moved from her parents’ home under section 20 of the Children Act 1989 to various care home facilities by the local authority. The case concerned whether or not restrictions placed on RK at her then care home amounted to a deprivation of liberty.

At the first hearing of the matter in the Court of Protection the judge found that RK’s parents had consented to RK’s placement at the home pursuant to section 20(8) of the Children Act 1989 and in addition he found the steps taken to manage RK’s behaviour did not amount to a deprivation of liberty.

The Official Solicitor on behalf of RK appealed this decision and the Court of Appeal was specifically called to consider whether or not the restrictions placed on RK by the home, and those authorised by her parents all amounted to a deprivation of liberty either individually or accumulatively.

The Court of Appeal dismissed the appeal and confirmed that from the various European Court of Human Rights cases[2] an adult in the exercise of parental responsibility can impose, or may impose others to impose, restrictions on the liberty of the child although, the restrictions imposed cannot in their totality amount to detention. On the facts of this case, the parents had authorised RK’s residence at the care home by consenting to the section 20 provision of care. However, what was then considered was whether or not the restrictions imposed by the home on RK individually or accumulatively amounted to detention. Interestingly the Court of Appeal did not in its judgement specifically consider the factual position of RK’s care and the sorts of restrictions imposed. However, when the case was heard by the Court of Protection, the regime under which RK resided was as follows:

“i From Friday evening to Sunday evening she is at home with her parents. When at home she compliantly takes her prescribed medicines.

ii During the week in term time she is at school At school she is of course supervised to ensure that she neither harms herself or others. ….

iii When not at school or at home she is at [the care home]. RK’s parents can visit her at any time. At [the care home] she is closely supervised to prevent her harming herself or others. She compliantly takes her prescribed medicines. She has not been forced to do so, nor has she been restrained, other than on a few occasions for the purposes of preventing her from attacking others. If she behaves badly then minor sanctions have been imposed on a few occasions such as not allowing her to eat a take away meal or stopping her listening to music when in the car. The front door of [the care home] is not locked. Were RK to run out of it she would be brought back.”[3]

Whilst the Court of Appeal did not specifically detail those factual circumstances it agreed with the Court of Protection’s comments that:

‘I find it impossible to say, quite apart from s20(8) Children Act 1989, that these factual circumstances amount to a “deprivation of liberty”. Indeed it is an abuse of language to suggest it. To suggest that taking steps to prevent RK attacking others amounts to “restraints” signifying confinement is untenable. Equally, to suggest that the petty sanctions I have identified signifies confinement is untenable. The supervision that is supplied is understandably necessary to keep RK safe and to discharge the duty of care. The same is true of the need to ensure that RK takes her medicine. None of these things whether taken individually or collectively comes remotely close to crossing the line marked: deprivation of liberty”.’[4]

In agreeing with this view, the Court of Appeal confirmed that, “The restrictions were no more than what was reasonably required to protect RK from harming herself or others within her range”[5]. The Court of Appeal also noted that the parents’ position was that care at home was impossible without extensive support and in effect the purpose of any home care would be to protect RK and others from harm. The Court noted that effectively this meant that wherever RK was accommodated the same restrictions on her liberty were essential.

Comment

The case is of particular interest in light of the recent Cheshire West decision[6]. Whilst the Court of Appeal have made it clear that those exercising parental responsibility cannot detain a child, they can lawfully impose restrictions on them in order to protect them from harm. What is still somewhat unclear is the point at which the restrictions tip the balance and become a deprivation of liberty. What is clear is that the restrictions detailed above in the case of RK were not considered to tip the balance. However, there will be potential situations where restrictions imposed could well go beyond those noted above and there will inevitably then be a question mark about whether some form of authorisation from the Court will be necessary. Where practitioners have concerns about the level of restriction imposed, legal advice should be sought.


Footnotes

[1] [2011] All ER (D) 28 (Dec), [2011] EWCA Civ 1305
[2] Nielsen v. Denmark [1988] 11 EHRR 175 and Re K [2002] 2 WLR 1141
[3] YB v BCC and AK and RK (by her litigation Friend the Official Solicitor) [2010] EWHC 3355(COP) (Fam), para 36
[4] RK (by her litigation friend, the Official Solicitor) v. BCC and others [2011] All ER (D) 28 (Dec), [2011] EWCA Civ 1305 para 26
[5] Ibid para. 27
[6] See RadcliffesLeBrasseur Briefing, December 2011


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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