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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> B, Re [2017] EWFC B93 (06 November 2017) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/B93.html Cite as: [2017] EWFC B93

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IN THE WEST LONDON FAMILY COURT
IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT
AND IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF B [AGE 11]

		6 November 2017

Application

1. B is the subject of an Interim Care Order in care proceedings listed for final hearing in December. Within the care proceedings, the local authority assert that B has experienced physical and emotional harm and neglect in his mother's care. This judgment addresses the local authority applications,

a. Under s100(3) Children Act 1989 for leave to make an application under the court's inherent jurisdiction; and, if granted leave, for

b. A Declaration that it is lawful for the local authority to deprive B of his liberty in order to prevent B causing harm to himself or others. The local authority applies for an order to last for a year.

Background

2. B has a diagnosis of Autistic Spectrum Disorder. He exhibits extreme behaviour including verbal aggression and physical violence, and he requires a significant level of highly skilled care. Since early 2017 B has been accommodated in a residential unit and assessment centre. He is subject to significant restrictions on his liberty. Set out in detail in the social worker's evidence the restrictions include,

a. Supervision from a distance (he is not followed but staff are always aware where he is and what he doing);

b. He is not left alone with the other child in the placement;

c. He is always accompanied when out in the community;

d. He is subject, from time to time, to the removal and/or limitation of access to a computer and Xbox; and

e. Staff use numerous specialist methods to deal with his behaviour, including physical restraint listed in a chronology covering May to September 2017.

Since the IRH, B's behaviour has deteriorated and the need for intrusion into his autonomy has correspondingly increased.

3. The applications are supported by B's Guardian, save that she invites the court to make the order for the much shorter period of no more than three months, and to provide for a review of the order at the final hearing in any event.
4. The position of B's parents is unknown today. The local authority has attempted to serve the father with notice of the hearing through the method now adopted within the care proceedings, whereby the social worker phones the father and arranges a meeting away from the father's shared accommodation where the father can be personally served. The social worker has phoned the father repeatedly, however he has not taken or returned her calls. He therefore has no notice of the application. The mother has been served with notice, and her solicitors have been unable to secure funding for the hearing; they have written to the court asking for an adjournment. The mother herself has, her solicitors report, had a bad fall leaving her unable to attend court. She therefore has notice of the application, but is unrepresented and unable to attend. In those circumstances, I must first decide whether to grant the mother's application for an adjournment.
5. I conclude that the application must proceed today, and I refuse the application for an adjournment. My reasons are that,

a. The restraints are actually being used on B already. It is therefore essential for the court immediately to consider whether the restraints are lawful. This cannot wait;

b. I am conscious of the words of Wall J, cited by the President in the case of X (A Child) and Y (A Child) [2016] EWHC 2271 (Fam), that "the child's parents should be involved in the decision-making process and must be given a fair hearing by the court". The nature of B's placement and the challenges posed to those caring for him have, however, been considered by the court within the care proceedings at hearings where the parents have had the change to attend and be represented. B has been in his current placement since 1.4.17, and the local authority does not intend to change that placement;

c. Further, the order I make can be reviewed at any time. The order will include, as envisaged by the President in X, express liberty to the parties to apply to the court to review its decision on the shortest possible reasonable notice, which I propose to be 48 hours. If the application is made to me in the first instance, by email to [email protected] then I will ensure that the case is listed urgently;

d. In any event the need for an order will be reviewed at the final hearing of the care proceedings which will now be before me on 4 and 5 December, in less than a month's time, and if I do make an order I will make it for the shortest appropriate period.

6. The issues for the court to determine are,

a. Whether the local authority should be granted leave to invoke the court's inherent jurisdiction;

b. Whether as a question of fact, the current and proposed restrictions on B's liberty amount to a deprivation of liberty;

c. If so, whether (i) as a question of law B is capable of consenting to that deprivation and (ii) as a question of fact, he does; and

d. Whether an order should be made determining that the deprivation of liberty is lawful.

The Hearing and Judgment

7. I have read the local authority evidence in support of the application and the position statements of the local authority and Guardian. I have read the chronology of B's behaviours requiring staff to use restraining techniques. I have heard submissions by advocates for the local authority and Children's Guardian.

Leave to invoke the Inherent Jurisdiction

8. Pursuant to s100(3)-(5) Children Act 1989,

"(3) No application for any exercise of the court's inherent jurisdiction with respect to children may be made by the local authority unless the local authority has obtained the leave of the court."

(4) The court may only grant leave if it is satisfied that-

(a) The result which the authority wish to achieve could not be achieved through the making of an order of a kind to which subsection (5) applies; and

(b) There is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm."

(5) This subsection applies to any order-

(a) Made otherwise than in the exercise of the court's inherent jurisdiction; and

(b) Which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).

9. The placement is not registered secure accommodation, and therefore one of the gateway criteria for the making of an order under s25 Children Act 1989 is not available: In the Matter of X and Y [2016] EWHC 2271 (Fam); reg 2(1) Children (Secure Accommodation) Regulations 1991 as amended. In a series of cases that fall outside s25 CA 1989 the High Court has turned to the inherent jurisdiction to authorise the deprivation of liberty. The cases include AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam) (non-registered children's home), Trust A v X and Others [2015] EWHC 922 (Fam) (a hospital), and Re C (Detention Medical Treatment) [1997] 2 FLR 180 (a hospital). In those cases as in this, the nature of the placement has precluded an order under s25, and therefore the first limb of the test for the grant of leave under s100(4)(a) CA 1989 is met.
10. In those cases the court found that the second limb under s100(4)(b) was also met, namely that there was reasonable cause to believe that if the court's inherent jurisdiction was not exercised the child was likely to suffer significant harm. Within the chronology in this case, there are repeated examples of B acting in a way which, if he were not restrained, would cause significant physical harm to others but also to himself. Just by way of example, he has head-butted staff, and he has punched, kicked and climbed on chairs and a table without thought for his own physical safety. The emotional impact on B if these episodes are allowed to escalate without the necessary restraint is also plainly significant.
11. I conclude that the local authority has satisfied the "reasonable cause" test in the second limb of s100(4) for the grant of leave, and I therefore grant the local authority leave to apply under the court's inherent jurisdiction. I now pass on to consider the substantive application.

Do the restrictions amount to a deprivation of B's liberty?

12. The test is whether the proposed restrictions amount to "continuous control and supervision and lack of freedom to leave": Cheshire West and Chester Council v P [2014] UKSC 19 at [49] per Baroness Hale, and at [63] per Lord Neuberger. The issue is one of fact and degree, and the starting point is the "concrete situation of the particular person concerned".
13. The restraints that are being used in this case are set out at paragraph 2 above. As the Guardian submits, plainly correctly, the restrictions in place include some that would be in place for any child of B's age. Many 11 year olds would, for instance, be restricted in their use of electronic device and they would be accompanied in the community and on school journeys. At least some children of B's age would, however, have some degree of independence in these activities for example travelling at least part of the way to school unaccompanied and being unsupervised in the community at least for short periods of time. In any event, and critically given the nature of the relief sought, there are further and significant restrictions on B to be considered by the court, features of which include,

a. That B is, effectively, on 24 hour watch. He is never left unsupervised with the other young person in placement;

b. B's contact with his parents and siblings is restricted and supervised; and

c. B has had to be physically restrained on a significant number of occasions due to his physically challenging behaviour which has included assaults on staff. This has led to an increased staff presence to support staff during incidents, and means that B will now be supported by up to three members of staff.

14. Both the local authority and B's Guardian submit that these restraints to amount to a deprivation of liberty. I conclude that these steps go well beyond the conditions imposed on other young people of B's age, and find that they do amount to a deprivation of B's liberty.

Is B capable of consenting to the deprivation and, if so, does he?

15. The evidence of B's Guardian is that B is not a Gillick competent child and that he does not have capacity to give valid consent. The local authority does not seek to go behind that. I can take this element of the application shortly. I accept the Guardian's evidence, which is consistent with B's chronological age and with the other evidence available about his current development and behaviour. I find that B is not capable of consenting to the deprivation of his liberty.
16. For the reasons set out in the case of A Local Authority v D & Othrs [2016] EWHC 3473 (Fam), where a child is the subject of an interim care order, it is extremely unlikely that a parent could consent to what would otherwise amount to a deprivation of liberty. In those circumstances a local authority cannot consent either, although acquiring parental responsibility through the making of the interim order. Thus no person can give valid consent to the deprivation of B's liberty identified above.

Should the order sought by the local authority be made?

17. The inherent jurisdiction is a jurisdiction of best interests.
18. An order depriving a child of his liberty must be consistent with his rights under Article 5 ECHR. The relevant part of Article 5 provides that,

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…..

(d ) the detention of a minor by lawful order for the purpose of educational supervision….."

As pointed out by Keehan J in A local Authority v D, E and C [2016] EWHC 3473 (Fam), the court can proceed on the basis of Art 5(1)(d) in light of the

"..generous interpretation the European Court of Human Rights has given to the meaning of this article. In Koniarska v UK (Application 33670/96 12.10.00) the court observed:

"The Court considers that, in the context of the detention of minors, the words "educational supervision" must not be equated rigidly with notions of classroom teaching. In particular, in the present context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned."

19. There is a divergence of judicial opinion about whether an order should be made in circumstances where the criteria pursuant to s25 CA 1989 are not met. In such cases as Re C (above), and Re B (Secure Accommodation: Inherent Jurisdiction)(No 2) [2013] EWHC 4566 (Fam) the court has taken the view that by analogy, the court should pay close regard to whether the criteria for an order under s25 are established. The rationale is that it would be wrong to make such a Draconian order under the inherent jurisdiction using "looser" criteria than those prescribed by statute. In other cases the court has proceeded on the basis of welfare, acknowledging that the criteria under s25 are not met: see eg Re AB (above). Either way, it is essential that the safeguards set out in X (A Child) and Y (above) paras 48 and 49 are in place. In particular, that if an order is made,

a. It is based upon and justified by convincing evidence from appropriate experts or professionals that the proposed deprivation is necessary for the welfare of the child;

b. The order should direct or authorise the minimum degree of force or restraint, and in a case of an order directing or authorising the detention of the child the minimum period of detention, consistent with the welfare principle;

c. The order should specify where the child is detained, specify the maximum duration of the authorisation and, if appropriate a date on which the matter is to be reviewed by the court;

d. Any order should contain an express liberty to the parties to apply for further directions on the shortest possible notice;

e. Should contain directions facilitating contact between child and parents (though in the circumstances of this case this will already be in place); and

f. Should contain the same safeguards that would have been available if the child were deprived of his liberty in accordance with some analogous statutory regime.

20. Neither the local authority nor the Guardian seek to persuade me to one legal approach or the other. The local authority submits, however, that given the evidence of extremely violent behaviour by B, the criteria under s25(1)(b) CA 1989 are in fact satisfied. In other words they submit that if he is kept in accommodation where the proposed restraints cannot be put in place, he is likely to injure himself or other persons.
21. It would be inappropriate for me as a Circuit Judge to attempt to resolve this divergence to the extent that there is in fact a divergence, however in this particular case I do not need to do so. The likely consequences should B not be restrained in moments of extreme behaviour are plainly that he is likely to injure himself or other persons. Both by analogy with s25 and on welfare grounds, therefore, I accept the submissions and evidence of the local authority and Guardian. I conclude that the order should be made.

Conclusion

22. I invite the advocates to draft the order and to consider whether this should be expressed as a declaration or permission. In either case, the provisions set out in paragraph 19 (a)-(f) above should be reflected in the order which I will approve on receipt.
23. I wish to add this in conclusion. B is only 11. His current circumstances are understandably causing the local authority and the Guardian – and I am sure his parents - extreme concern for his welfare. The court shares that concern. I am satisfied that the order sought today is required to ensure that B is kept safe, and that he does not cause or suffer significant harm, and therefore that it is in his best interests. I am very conscious, however, of the Draconian nature of such an order, especially for a person as young as B. I very much hope to hear at the final hearing of positive progress, and of proposals for therapeutic intervention for B aimed at improving his situation and enabling him to live a more relaxed and positive life as soon as possible.

HHJ Rowe QC

24. 11 17