High Court refuses application for deprivation of liberty order regarding disabled 15-year-old subject to care order

A judge has refused an application by a local authority for a declaration from the High Court that it is lawful and in the best interests of a 15-year-old boy with "profound enduring disabilities", who is the subject of a care order, to be deprived of his liberty.

His Honour Judge Middleton-Roy, sitting as a Deputy High Court judge, said it was not necessary for the High Court to grant leave to exercise its inherent jurisdiction, and that a deprivation of liberty order was not necessary.

The judge said the boy, V, is a highly vulnerable young person with complex medical needs.

The local authority had applied to the High Court for authority to impose restrictions including two-to-one or one-to-one supervision at all times, to be supported with his personal care including intimate care and to be monitored in his room by voice monitor and physical checks. 

The council also sought authorisation to supervise the use of V’s mobile phone. However, the local authority accepted in submissions that no deprivation authorisation from the High Court was necessary in respect of the proposed restrictions on V's mobile phone use, this being an appropriate exercise of its parental responsibility for V under the existing care order.

HHJ Middleton-Roy noted that a previous deprivation of liberty order had been made in the local Family Court by a section 9 judge in 2023.

He added, however, that that order had been made prior to the decision of Mrs Justice Lieven in the case of Peterborough City Council v SM [2024] EWHC 493 (Fam).

The local authority submitted that V’s case was distinguishable from the case of SM, primarily as in that case, the subject child could not communicate in any form and did not understand language.

It also submitted that V has limited communication and understanding but can express happiness, sadness and pain.

HHJ Middleton-Roy said: “People with disabilities have the same human rights as those without disabilities. 'V's profound disabilities place a duty on the State to make reasonable accommodation and cater for his particular needs. The measures put in place by the Local Authority to support 'V', on a proper fact-specific analysis, form part of 'V's care provision. 'V' is undoubtedly under close and constant supervision.

“However, in this Court's judgement, the measures implemented by the Local Authority are not actions of the State which deprive 'V' of his liberty. They are designed to meet his care needs. There are many aspects of 'V's care which may intrude on his privacy, with specific justification, but they are not, in this Court's judgement, interferences with his important right to liberty and security of person under Article 5 of the European Convention on Human Rights.”

He added that “respectfully” the Court disagreed with the submission that there was any material distinction of the principle in SM in this case.

The Deputy High Court judge said: “The young person, 'V' who is at the centre of this case, requires support because of his profound disabilities. In practical terms, 'V' cannot leave his care placement of his own volition, due to his enduring disabilities. For 'V', the reason he can't leave his care placement and requires intimate support is because of those disabilities, not by reason of any action of the State.

“For the same reasons articulated by Lieven J in SM, the facts of this case show that the State is not depriving 'V' of his right to liberty and security of person within the meaning of Article 5 ECHR. 'V's Article 2, 3 and 5 rights are not infringed by the restrictions necessarily implemented by the Local Authority to supervise him, monitor him and provide for his personal care.”

The judge said that nothing in his decision was intended to take away from the fact that the local authority was providing suitable care for V and was responding appropriately to his complex needs.

“This is not, however, a case where the Local Authority requires a permissive Order from the Court. This is not a case where it is necessary for the High Court to grant leave to exercise its inherent jurisdiction. In this Court's judgement, a Deprivation of Liberty Order is not necessary,” he said.

The local authority’s application for permission under s100 Children Act 1989 was refused.