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Cheshire West and children

RCJ portrait 146x219Sarah Nuttall considers how the courts are applying the Cheshire West principles to Children Act cases.

The decision in Surrey County Council v P, Cheshire West and Chester Council v P [2014] UKSC 19 [2014] AC 896 (‘Cheshire West’) has received considerable attention recently as it applies to incapacitated adults and I have had recent involvement with cases involving children where the principles set out in Cheshire West have been found to apply. Whilst the restriction on children’s liberty has received attention previously, the developments in this area of law within this jurisdiction since Cheshire West is something that I have found particularly interesting and this article is intended to summarise the more recent guidance and case law.

The concept of Deprivation of Liberty, as it applies to children, is not necessarily “new”; many practitioners who undertake children work will be familiar with secure accommodation orders and the circumstances that lead to such applications being made. Since Cheshire West, there has been something of a divergence between children who are the subjects of secure accommodation applications, and those who would otherwise fall to be subjects of applications being made under the inherent jurisdiction.

In Trust A v X and A Local Authority [2015] EWHC 922 (Fam) (‘Trust A’), it had been argued that Cheshire West did not apply to cases involving young persons under the age of 16, and that the disability or mental disorder of the young person concerned was irrelevant to the question of whether there was a deprivation of liberty. Rejecting that position, Mr Justice Keehan said at paragraph 42:

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“I do not accept any of those propositions. The protection of Article 5 of the Convention and the fundamental right to liberty applies to the whole of the human race; young or old and to those with disabilities just as much to those without. It may be those rights have sometimes to be limited or restricted because of the young age or disabilities of the individual but ‘the starting point should be the same as that for everyone else’, per Baroness Hale: Cheshire West at paragraph 45.”

He later went on to say at paragraph 46:

“The essential issue in this case is whether D’s parents can, in the proper exercise of parental responsibility, consent to his accommodation in Hospital B and thus render what would otherwise be a deprivation of liberty not a deprivation of liberty (ie the 2nd limb in Cheshire West is not satisfied).”

Parental Responsibility

Lady Hale in Cheshire West considered Nielsen v Denmark (1988) 11 EHRR 175, a case concerning a 12-year-old boy placed in a children’s psychiatric unit by his mother. The majority in Nielsen held that the restrictions did not amount to a deprivation of liberty within the meaning of Article 5, that the restrictions to which he was subject were “no more than the normal requirements for the care of a child of 12 years of age receiving treatment in hospital. The conditions . . . did not, in principle, differ from those obtaining in many hospital wards where children with physical disorders are treated……”. The court found that the child’s hospitalisation, therefore, “was a responsible exercise by his mother of her custodial rights in the interest of the child” (paras 72 and 73 of Nielsen). Lady Hale identified from these comments that the key issue on which a case involving a child turns is “the proper limits of parental authority” (paragraph 30, Cheshire West).

Later, at paragraph 54 of Cheshire West, Lady Hale commented further that the constraints leading to a deprivation of liberty in Cheshire West were imposed by the state. Similar constraints would not necessarily amount to a deprivation of liberty if imposed by parents in the exercise of their ordinary parental responsibilities, and that those constraints could fall outside the legal framework governing state intervention in the lives of children or people who lack capacity to make their own decisions.

Turning again to Trust A, the child here being 15 years old, Mr Justice Keehan found that he was satisfied that the child lived in conditions which amounted to a deprivation of his liberty, and that he was under constant supervision or control; it mattered not that the child appeared comfortable and happy at the accommodation – “a gilded cage is still a cage” (paragraph 52). At paragraphs 55 to 58, he went on to say:

“When considering the exercise of parental responsibility in this case and whether a decision falls within the zone of parental responsibility, it is inevitable and necessary that I take into account D’s autism and his other diagnosed conditions. I do so because they are important and fundamental factors to take into account when considering his maturity and his ability to make decisions about his day to day life.

An appropriate exercise of parental responsibility in respect of a 5 year old child will differ very considerably from what is or is not an appropriate exercise of parental responsibility in respect of a 15 year old young person.

The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D’s disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.

The parents of this young man are making decisions, of which he is incapable, in the welfare best interests of their son. It is necessary for them to do so to protect him and to provide him with the help and support he needs.”

Mr Justice Keehan went on to observe that the parents in this case were acting on the advice of the treating clinicians, and that all professionals agreed that the arrangements were in the child’s best interests. He did, however, observe that the position could be different where the parents might be acting contrary to medical advice, or having consented to a placement, then abandoned the child or took little involvement in his life thereafter.

Parental Responsibility – The Local Authority

After Trust A, Mr Justice Keehan was again required to consider the deprivation of liberty of a 14 year old child in A local authority v D & Ors [2015] EWHC 3125 (Fam), but one subject to an interim care order. This required a careful examination of the exercise or limitations of parental responsibility over children who were accommodated under section 20 of the Children Act 1989, and the local authority’s exercise of parental responsibility under an interim or full care order.

What arises from A local authority v D appears to be a sliding scale that reflects, perhaps unsurprisingly, that whether decisions, accommodation or constraints over a young person fall within the proper exercise of responsibility is fact specific. After referring to what he had said in Trust A, Mr Justice Keehan provides useful analysis as set out at paragraphs 26 to 28:

“Do the same considerations apply when a child is accommodated by a local authority pursuant to s.20 of the Children Act 1989? The only possible answer is they may do. It will all depend on the facts of the individual case. At one extreme, an agreed reception into care of a child, that is beneficial and for a short-lived period, where the parent and the local authority are working together co-operatively in the best interests of the child, may be an appropriate exercise of parental responsibility. Thus it would be appropriate for that parent to consent to the child residing in a place (for example, a hospital) for a period and in circumstances which amount to a deprivation of liberty. 

At the other extreme, there will be cases where children have been removed from their parents' care pursuant to a s.20 agreement as a prelude to the issue of care proceedings and where the local authority contend the threshold criteria of s.31(2) of the Children Act 1989 are satisfied. In such an event, I find it difficult to conceive of a set of circumstances where it could properly be said that a parent's consent to what, otherwise, would amount to a deprivation of liberty, would fall within the zone of parental responsibility of that parent. This parent’s past exercise of parental responsibility will, perforce of circumstances, have been seriously called into question and it would not be right or appropriate within the spirit of the conclusion of the Supreme Court in Cheshire West to permit such a parent to so consent. Where a child or young person is in the care of a local authority and is subject to interim or care orders, the reasoning in paragraph 27 applies with even greater force, especially when one considers the effect of an interim care order, which includes the power of the local authority to restrict "the extent to which a parent may meet his parental responsibility for the child" (s.33(3)(b) Children Act 1989)."

It is clear, therefore, even if parents fully consented to the restrictions imposed on their children for their safety, there are circumstances where their exercise of such parental responsibility is sufficiently questioned such that it would not be appropriate to rely on such consent. This is particularly true where the courts have found it necessary for the local authority to share parental responsibility.

In such circumstances, can a local authority be found to “consent” to what would otherwise amount to a deprivation of liberty? Mr Justice Keehan in A local authority v D found that it could not; that allowing a local authority, as an organ of the state, such exercise would “(1) breach Article 5 of the Convention, which provides "no one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law", (2) would not afford the "proper safeguards which will secure the legal justifications for the constraints under which they are made out", and (3) would not meet the need for a periodic independent check on whether the arrangements made for them are in their best interests” (paragraph 29). Mr Justice Keehan further found that, whether under interim or full care orders, the regular Looked After Child reviews and involvement of an Independent Reviewing Officer would not provide a sufficiently robust safeguard independent of the state (paragraph 36).

Young People – 16 & 17 year olds

Mr Justice Keehan was again required to consider in Birmingham City Council v D [2016] EWCOP 8 the limitations on the proper exercise of parental responsibility by a parent, but this time owing to their child’s age.

Within Birmingham City Council v D, Mr Justice Keehan confirmed his earlier decisions and observations in Trust A and A local authority v D in so far as they commented on the limitations of the circumstances in which a parent could give valid consent where their child is accommodated by the local authority pursuant to section 20, or was the subject of an interim or final care order. Further, he confirmed that where a local authority had parental responsibility under an interim or full care order, it could never give valid consent to a confinement which would amount to a deprivation of liberty (paragraphs 100-101). He went on to find, however, that Parliament has “on numerous occasions…. Chosen to distinguish the legal status of those who have not attained the age of 16 years, those aged 16 and 17 and, finally, those who have attained their majority” (paragraph 103).

After an exhaustive evaluation of the case law and relevant statutory provisions, Mr Justice Keehan said at paragraph 105:

“Accordingly, I have come to the clear conclusion that however close the parents are to their child and however cooperative they are with treating clinicians, the parent of a 16 or 17 year old young person may not consent to their confinement which, absent a valid consent, would amount to a deprivation of that young person’s liberty”.

Later, at paragraph 115:

“I am satisfied that young people of 16 or 17 years are entitled to the full protection of their Article 5(1) rights irrespective of their capacity to consent to their treatment or their living arrangements. In the premises I reject the submissions made on behalf of the local authority that the parent of an incapacitous 16 year old may consent to their confinement, which would otherwise amount to a deprivation of liberty, because that young person is unable to consent to the same.”

Conclusion

In my view, these cases reflect a rapid development in the principles to be applied in situations involving children and young persons aged up to and including 17. What is set out above is, admittedly, a rather crude summary of the very detailed analysis that has been undertaken on each occasion, but I hope a summary that does reflect the following key points:

(a) Whether a child or young person is cared for in circumstances amounting to a deprivation of liberty is fact specific;

(b) A parent can properly consent to such circumstances in the proper exercise of their parental responsibility until their child turns 16 years of age, subject to the absence of local authority safeguarding intervention;

(c) It could be considered inappropriate to rely on a parent’s consent to such circumstances when the child is accommodated under section 20, but such circumstances are fact specific;

(d) A child who is subject to an interim or full care order cannot be accommodated by a local authority in circumstances amounting to a deprivation of liberty without approval of the court as the local authority, as an organ of the state, cannot exercise its parental responsibility in the same way as the child’s parent;

(e) Following Birmingham City Council v D, in cases involving young persons of 16 or 17 years of age, the court’s approval for accommodation amounting to deprivation of liberty is likely to be required in the absence of the young person’s consent as the parents and/or the local authority cannot consent on the young person’s behalf.

What has not, however, received specific attention within these judgments is the frequency of the reviews that need to be undertaken to ensure that the restraints and limitations on a child or young person’s freedom remain necessary. In A local authority v D, the court gave permission for a period of three months, and this does seem, therefore, to be an appropriate starting point. My own experience includes young persons who are subject to care proceedings and their living arrangements have been kept under regular review by the High Court at each hearing. Whilst the question arose on one occasion as to whether “permission” to the restrictive care arrangements should be considered separately from the decisions being made within the care proceedings, there has been the clear and obvious benefit from the same court determining those issues. The frequency of the reviews of those circumstances, therefore, will no doubt need to be considered further at a later date.

Whilst there is much reference to children and young persons being accommodated under section 20, I am personally interested to see the extent to which such cases will fall to be considered, particularly in light of the judicial attention given to section 20 arrangements and the comments made for the need for a child to have a voice through their Guardian. Whilst such commentary has often been made in respect of babies and very young children, the same must, in my view, apply to children who have such significant needs as to warrant protective care arrangements that can amount to a deprivation of their liberty. 

In my view, where a child under the age of 16 is accommodated under section 20, it is clear that the local authority has a positive obligation to keep under active and well documented review when and why it has considered the arrangements made to keep a child adequately protected, the extent of the parent’s involvement in that decision-making process, and the local authority’s evaluation of whether the parent’s consent is appropriately given having considered the circumstances in which the child was accommodated under section 20.

Sarah Nuttall is a barrister at New Court Chambers.

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