Mobile phones and deprivations of liberty
Is depriving a person of their mobile phone depriving them of their liberty? That was the very 21st century question confronting a High Court judge recently. Whilst his analysis concerned the position of a 16 year old, his conclusions apply equally to adults, writes Alex Ruck Keene KC (Hon).
It was common ground between the local authority and the Guardian that the significant restrictions to be placed upon the ability of the 16 year old in question, P, to use a mobile phone and other devices gave rise to a state imposed confinement to which she did not consent, and hence a deprivation of her liberty, which the High Court could authorise by exercise of its inherent jurisdiction.
MacDonald J, however, whilst acknowledging that this had been the practice to date (including by himself), decided in Manchester City Council v CP & Ors [2023] EWHC 133 (Fam) that it was necessary to consider the question in more detail, and reached the opposite conclusion.
Importantly, and identifying a point which is sometimes missed, MacDonald J made clear at paragraph 26 that the caselaw confirmed that “in this context, and historically, the concept of liberty under Art 5(1) of the ECHR contemplates individual liberty in its classic sense, that is to say the physical liberty of the person,” and that the reference to “security” in Article 5 “serves simply to emphasise that the requirement that a person’s liberty may not be deprived in an arbitrary fashion.” He noted that rule 11(b) of the UN Rules for the Protection of Juveniles Deprived of their Liberty also emphasised the concept of physical liberty,[1] defining deprivation of liberty as “any form of detention or imprisonment or the placement of a person in another public or private setting from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.”
MacDonald J further identified at paragraph 37 that restrictions upon on access to, or the use of, telephones were most commonly considered by the ECtHR in the context of the Article 8 ECHR right to respect for private and family life, rather than under Art 5(1).
Applying these principles, MacDonald J recognised that:
45. […] for P, in common with many other young people of her age, her mobile phone and other devices constitute a powerful analogue for freedom, particularly in circumstances where she is at present confined physically to her placement. Within this context, I accept that the possession and use of her mobile phone, tablet and laptop, and her concomitant access to social media, is likely to equate in P’s mind to “liberty” broadly defined as the state or condition of being free.
However, MacDonald J continued:
However, this court is concerned with the meaning of liberty under Art 5(1) of the ECHR. Whilst I recognise that the Convention is a living instrument, which must be interpreted in the light of present-day conditions (see Tyrer v United Kingdom (1978) 2 EHRR 1 at [31]), over an extended period of time the Commission and the ECtHR have repeatedly made clear that Art 5(1) is concerned with individual liberty in its classic sense of the physical liberty of the person, with its aim being to ensure that no one is dispossessed of their physical liberty in an arbitrary fashion. The Supreme Court proceeded on that formulation of the proper scope of Art 5(1) in Cheshire West.
That meant, in turn, that:
46. […] in my judgment the removal of, or the placing of restrictions on the use of, P’s mobile phone, tablet and laptop and her use of social media do not by themselves amount to a restriction of her liberty for the purposes of Art 5(1). On the evidence currently before the court those restrictions do not act to deprive P of her physical liberty, but rather act to restrict her communication, so as to ensure her physical and emotional safety. The evidence set out earlier in this judgment demonstrates that the effect of those restrictions is to limit P’s communications with peers who might encourage her to engage in bad behaviour, with strangers who may present a risk to her and with family and friends when she is in a heightened emotional state. Within this context, the restrictions on the use of P’s devices for which the local authority seek authorisation do not, in my judgment, by themselves constitute an objective component of confinement of P in a particular restricted place for a not negligible length of time. In the circumstances, whilst they are steps at times taken without P’s consent and are imputable to the State, those restrictions do not, by themselves, meet the first Storck criterion [i.e. that P is subject to continuous supervision and control and prevented from leaving a restricted place for a non-negligible period of time].
The local authority argued that the restrictions upon her devices formed an integral element of the confinement to which P was subject (in circumstances where she was under other, more obvious restrictions such as supervision and physical restraint to protect from harm). Whilst MacDonald J accepted that they might, at time, be said to form part of a regime of continuous supervision and control, he reiterated that they did not act to restrict her physical liberty. Rather, their effect was:
65. […] to prevent P broadcasting online indiscriminately, to prevent contact from those advising her how to frustrate steps the placement takes to stop her from harming herself and others and to prevent her sharing details online with those who may pose a risk to her and restricting contact with those against whom she has alleged abuse. There is no suggestion in the evidence currently before the court that those restrictions constitute a necessary element of the deprivation of P’s physical liberty or of the manner of implementation of that deprivation of liberty. For example, the evidence before the court does not suggest that the restrictions on the use of P’s mobile phone, tablet and laptop and use of social media are required to ensure the effectiveness of the current measures that do operate to prevent her from leaving the placement, or that without those restrictions the current measures that operate to prevent her from leaving the placement would be rendered ineffective. In these circumstances, in my judgment the restrictions in respect of P’s phone, tablet and laptop and on the use of social media do not, even when considered in the context of the other elements of the other restrictions for which authorisation is sought, constitute an objective component of confinement of P in a particular restricted place for a not negligible length of time. Accordingly, it would in my judgment be wrong to authorise them under the auspices of a DOLS order [2] simply because they form part of the total regime to which P is currently subject in her placement.
Some might be wondering by this stage why MacDonald J was quite so keen to make clear that the restrictions on P’s devices did not give rise to a deprivation of her liberty. The answer he gave at paragraph 50 was an important one:
The difference between deprivation of and restriction upon liberty is one of degree or intensity and not one of nature or substance. But there is nonetheless a difference and that difference can have consequences. As I have noted above, restrictions of the type being imposed on P with respect to the use of her mobile phone, tablet and laptop, and concomitant limitations on her access to social media, are most naturally characterised as an interference with her Art 8 right to respect for private and family life. When considering them as such, before a court could endorse that interference it would have to be satisfied that that interference was necessary and proportionate, pursuant to Art 8(2). If however, those steps were instead to be considered and endorsed by the court by reference to Art 5(1), the exercise under Art 8(2) would be bypassed in respect of steps that constitute an interference in an Art 8(1) right. It is important that the court be careful not to allow its jurisdiction to make orders authorising the deprivation of a child’s liberty by reference to Art 5(1) to spill over into authorising steps that do not constitute a deprivation of liberty for the purposes of Art 5(1), particularly where those steps might constitute breaches of different rights, which breaches fall to be evaluated under different criteria. It may well be that one of the reasons for ECtHR adopting the narrow interpretation of word ‘liberty’ under Art 5(1) in cases such as Engel v Netherlands, limiting it to the classic concept of physical liberty, was to reduce risk of the Art 5 exceptions resulting in a de facto interference with other rights, without proper reference to the content of those other rights. (emphasis added).
MacDonald J’s conclusion meant that it was necessary to find an alternative route to authorise the restrictions (assuming that such restrictions were justified). This alternative route, he found, lay in the operation of parental responsibility (in P’s case, by the local authority under its shared parental responsibility under s.33(3)(b) of the Children Act 1989, P being the subject of a final care order. MacDonald J found that, ordinarily, a local authority relying upon s.33(3)(b) Children Act 1989 to impose restrictions on the use of devices to protect a child from a risk of serious harm would not require the sanction of the court, he did accept at paragraph 60 that:
circumstances that contemplate the use of physical restraint or other force to remove a mobile phone or other device from a 16 year old adolescent, even in order to prevent significant harm, is a grave step that would require sanction by the court, rather than simply the exercise by the local authority of its power under s.33(3)(b) of the 1989 Act, not least because such actions would likely constitute an assault. I am further satisfied that, in an appropriate case and where an order under Part II of the Children Act 1989 would not be available where a child is subject to a final care order, it would be open to the court to grant the local authority permission to apply for an order under the inherent jurisdiction, separate to any order authorising deprivation of liberty, that declares lawful the steps required to effect by restraint or other reasonable force the removal from a child of his or her devices, provided it is demonstrated that their continued use is causing, or risks causing, significant harm and provided that the force or restraint used is the minimum degree of force or restraint required.
MacDonald J emphasised that the threshold for making such an order – separate from the order authorising deprivation of liberty – would be a high one, requiring “cogent evidence that the child is likely to suffer significant harm if an order under the inherent jurisdiction in that regard were not to be made” (paragraph 71).
Comment
MacDonald J’s decision is a very useful reminder of the limit of the concept of deprivation of liberty: in this context, liberty, importantly, is not another word for autonomy. As Lady Hale put it in Secretary of State for the Home Department v JJ [2007] UKHL 45 (at paragraph 57):
My Lords, what does it mean to be deprived of one’s liberty? Not, we are all agreed, to be deprived of the freedom to live one’s life as one pleases. It means to be deprived of one’s physical liberty […] And what does this mean? It must mean being forced or obliged to be at a particular place where one does not choose to be: […] But even that is not always enough, because merely being required to live at a particular address or to keep within a particular geographical area does not, without more, amount to a deprivation of liberty. There must be a greater degree of control over one’s physical liberty than that.
In passing, it might be thought to be of interest that Lady Hale was clear in 2007 that deprivation of liberty included an element of overbearing of the person’s will, but by 2014 considered in Cheshire West that a lack of MCA-capacity to consent to confinement was sufficient, even if the person appears to be content. If you want to follow that rabbit hole, you might find this paper of interest.
It is interesting, and reassuring, to note that MacDonald J reached the same conclusions as to the human rights allocation of restrictions upon devices as was reached some years ago in the Court of Protection context by Mostyn J in J Council v GU & Ors [2012] EWCOP 3531. That the judgment did not refer to this case is likely down to the fact that (for better, or, I venture to suggest, worse) parallel furrows seem to be being ploughed by those concerned with deprivation of liberty in the context of children and adults.[3]
Be that as it may, MacDonald J’s observations about the need to be clear about which rights are in play, and what considerations need then to be taken into account in identifying who can determine and on what basis whether or not the interference is lawful are trenchant. They are also equally relevant in DoLS land in relation to adults. They reinforce the fact that restrictions which are not specifically directed at restricting the physical liberty of the person are not restrictions which can be authorised under DoLS. Such restrictions, whether they be upon devices, or upon contact, either need to be justified by reference to the (thin) legal cover available here under s.5 MCA 2005 or – more likely – need to be put before the Court of Protection so that the court can determine whether (a) such restrictions are in the best interests of the person; and (b) whether they are necessary and proportionate so as to satisfy Article 8(2) ECHR.
Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law & Policy blog.
[1] In passing, he could equally have noted that the interpretation of deprivation of liberty for purposes of these Rules derived from the interpretation of the concept for purposes of Article 9 of the International Covenant on Civil and Political Rights. The Human Rights Committee’s General Comment 35 on Article 9 makes clear in paragraph 3 that “[l]iberty of person concerns freedom from confinement of the body, not a general freedom of action.”
[2] As a plaintive and probably forlorn plea, it would be really helpful if practitioners and the courts could stop referring to inherent jurisdiction orders as “DoLS orders” as it perpetuates confusion with ‘actual’ DoLS, i.e. administrative authorisation under the Deprivation of Liberty Safeguards in relation to adults in care homes/hospitals.
[3] An issue identified by Sir James Munby in 2018, discussing in a speech for Legal Action Group the case of D at the point between his decision in the Court of Appeal and the decision of the Supreme Court, noting that “these cases lie at the intersection of three different bodies of domestic law – mental health law, mental capacity law and family law – where judicial decision-making is spread over a variety of courts and tribunals which, by and large, are served by different sections of the legal professions too few of whom are familiar with all three bodies of law. The existence of these institutional and professional silos has bedevilled this area of the law at least since the earliest days of the Bournewood litigation. One day, someone will write a critical, analytical history of all this – and it will not, I fear, present an altogether reassuring picture.”
