Deprivation Of Liberty – The Duty Of The Family Court

It is the duty of the family court to ensure that a child is properly safeguarded and taken care of, taking into consideration the welfare checklist in Section 1 of the Children Act 1989. Exercise of the Court’s inherent jurisdiction is particularly useful in care proceedings where a child has already been deemed to be either at risk of or having suffered significant harm in their parents care and is now in the care of a Local Authority.

Proceedings which exercise the Court’s inherent jurisdiction should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989 according to the Family Procedure Rules, Practice Direction 12. Furthermore, the inherent jurisdiction should only be evoked where there is no alternative order which would achieve the result that the Local Authority requires and the child would suffer significant harm if the inherent jurisdiction were not exercised.

What is the inherent jurisdiction?

The Inherent Jurisdiction is a doctrine of the English common law which enables a superior court to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal. That means that the Family Court can deal with issues such as the deprivation of a child’s liberty whilst that child is in the care of the Local Authority. Such issues can but do not regularly occur within care proceedings, so when they do arise there must be a legal remit within which such issues can be addressed.

Historically, Local Authorities did not strictly need the Court’s endorsement of any element of a care plan which deprived the liberty of a child. However, quite properly, the law has evolved and Local Authorities must seek judicial approval and oversight of any safeguard which would deprive the liberty of a child in its care. Where a child is under 16 and in Local Authority care, parental consent is irrelevant, the matter must be brought before the Court exercising its duty under the inherent jurisdiction.

What amounts to a deprivation of liberty?

The case of Cheshire West [2014] UKSC 19 sets out what is referred to as the ‘acid test’, this being the test that must be satisfied for safeguards to be deemed a deprivation of liberty. In essence, a child has to be subject to safeguards which equate to ‘continuous supervision and control’ and whereby they are ‘not allowed to leave’. Extensive case law exists to clarify what safeguards satisfy this test and it is important to note that safeguards amounting to a deprivation of liberty will vary depending on the age of the child and their individual characteristics, needs and circumstances. Examples of safeguards which could be deemed to amount to a deprivation of liberty would be where the doors of the child’s accommodation are kept locked, the child is under strict supervision e.g receiving 2:1 care, the child’s bedroom door is to remain open or entirely removed, the child is not permitted use of a mobile telephone and has certain belongings, clothing, toiletries or furniture removed from their room to ensure their own safety.

How is deprivation of liberty addressed in care proceedings?

Children have rights under article 5 of the European Convention on Human Rights not to be deprived of their liberty without legal authorisation. However, the Deprivation of Liberty Safeguards (DOLs) only apply to people who are aged 18 years and over.

Ordinarily, care proceedings would take place before Magistrates, a District Judge or a Circuit Judge. Where a care plan evolves to include deprivation of liberty safeguards the Local Authority must make an application for leave for the issue of deprivation of liberty to be heard by the High Court. Where a child is subject to a Care Order and under 16 years of age the criteria for the High Court granting a local authority leave to apply for it to exercise its inherent jurisdiction, as set out in section 100(4) of the Children Act 1989, are highly likely to be met according to Keehan J in Re D [2015] EWHC 922 (Fam).

In reality, this may mean that a Circuit Judge who has heard the case before may sit as a s.9(1) of the Senior Courts Act 1981 Judge and therefore as a Judge of the High Court. Following determination of the issue of deprivation of liberty, the proceedings are likely to continue at their original allocated level. It is important to note that once deprivation of liberty safeguards are authorised, they can only continue for as long as they are necessary. If they are no longer necessary to ensure the safety of a child, they must be discontinued and the care plan amended accordingly.

What if deprivation of liberty safeguards do not keep a child safe?

If, even with judicial oversight and endorsement the safeguards put in place the child cannot be kept safe, the Local Authority will need to reconsider its care plan urgently. Either, further restriction and deprivation of liberty safeguards will need to be considered by the Court or the Local Authority will have no other option than to make an application to securely accommodate the child under s.25 Children Act 1989. The Court and all parties should ensure that the option of least intervention for the child is pursued, so the Court will need to ensure that the legal test for secure accommodation is met before authorising the same, namely that:

(a) (i) he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii) if he absconds, he is likely to suffer significant harm; or
(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

The exercise of the Court’s inherent jurisdiction is therefore extremely useful to ensure that the proper standard of care is provided to a child in Local Authority care and urgently when required. Judicial endorsement and oversight ensures that Local Authorities are delivering a care plan of least intervention to a child and with as little impact on the child’s human rights as possible. Such legal processes should serve to reassure parents of the standard of care being delivered to their child.

Eleanor Derry
December 2019