Liverpool City Council v SG & Ors

I have heard this case in public and now give this judgment in public. I direct that no report of this case in the media or elsewhere may name the patient, nor her parents, nor the address at which she or they reside.

This case raises the following question:

I wish to stress at once the scope of that question which I have precisely drafted. This judgment and my answer to the question applies only in the case of a person who is not a child, that is, who has attained the age of 18. This judgment says nothing at all in relation to a person who has not attained the age of 18, and in particular to persons between the ages of 16 and 18. Further, this judgment is only concerned with a person in a children’s home, and says nothing at all with regard to a person who may be detained in a residential school.

I also wish to emphasise that both parties and their counsel who are before me in this case are agreed upon the answer to that question and the reasons for the answer. In other words, I have not heard any argument or submissions to the contrary. If, in some other case, on a future date, some party wishes to argue to the contrary, then of course that limitation or reservation upon the value of this ex tempore judgment as a precedent may be noted.

The reason why the question has been posed appears to derive from two relatively recent developments. The first development is the recent decision of the Supreme Court in the Cheshire West case. The explanation given in that case by Baroness Hale of Richmond as to the scope or breadth of the concept of a deprivation of liberty has led to a concern that a significant number of people are, or may be, being deprived of their liberty who were not previously thought to have been. As is well known, this has led to a very large number of applications to the Court of Protection in order to seek authorisations for the deprivation of liberty.

The second development is a document headed “Deprivation of Liberty – Guidance for Providers of Children’s Homes and Residential Special Schools” dated 12^th February 2014 and issued jointly by the President of the Court of Protection and the National Director Social Care OFSTED. It appears that as a result of that guidance document there has been, or is, uncertainty on the part of many lawyers and providers in this field as to the scope or extent of any power of the Court of Protection to authorise, when appropriate, the deprivation of liberty of certain categories of person who are accommodated in children’s homes or residential special schools. As the above defined question indicates, that concern has arisen in the present case, but I know that it is much more widespread as a result of the circumstances which I now describe.

On 5^th and 6^th June 2014 there was a hearing before the President of the Court of Protection in London. Some of the counsel who appear before me in this case today were also engaged at that hearing. I understand that that hearing involved at least six different local authorities and, astonishingly, around 15 advocates. I understand that it concerned a number of issues of general public importance in relation to children or young persons in this broad context. The President reserved, and as of today has not yet delivered, his judgment.

But in the course of that hearing there was some reference to the forthcoming hearing today in the present case. One of the counsel appearing before The President, Ms Natalia Perrett, made reference to the present case. At page 65, line 69, of the verbatim transcript of that hearing she said:

A little further on in the transcript at pages 66 and 67 the President of the Court of Protection, saying that he was “merely thinking aloud”, suggested that it may be that a sensible way forward would be for advocates in the cases before him to send to me copies of written submissions that I could take into account. In a passage at the top of page 67 the President said:

Ms Perrett then made reference to counsel for the Secretary of State for Education who was apparently also before the President that day. His counsel, namely, Ms Joanne Clement, then said:

The exchanges culminated in the President saying that:

Following on from those exchanges with the President of the Court of Protection there have been the following developments. Ms Perrett did indeed send an email to me late on Monday, 16^th June 2014, in which she referred to her case, namely, Barnsley Metropolitan Borough Council v S, S & P (Case number 12498686), and referred to the suggestion the President had made that she might send me some form of written submissions. She attached the skeleton argument which she had prepared for the hearing before the President himself on 5^th and 6^th June 2014. Her email included the following:

Quite separately, the Official Solicitor, who is the litigation friend for the patient in another unrelated case, namely, Westminster City Council v NJ & YJ and HGL (Case no: 12382069), issued an application in the Court of Protection dated yesterday, 17^th June 2014. That application is entitled In the Case of N J, but seeks:

It may be that the Official Solicitor himself was engaged in some capacity or other at the hearing before the President on 5^th and 6^th June 2014. But in any event his counsel on the application that he has now issued for consolidation is Mr Conrad Hallin, who was one of the many counsel appearing before the President at that hearing, so of course Mr Hallin learned at that hearing, if not before, of the existence of the present case and the hearing fixed for today. Mr Hallin indeed appears before me today, instructed by the Official Solicitor to make and develop that application as described in the formal application notice that was issued yesterday.

So those two cases, namely, Barnsley Metropolitan Borough Council v S, S & P and Westminster City Council v NJ & YJ & HGL both illustrate the wider concern around the present broad topic. Further, and as foreshadowed in the observations of Ms Clement to the President which I have quoted at paragraph 10 above, there has been a recent flurry of communications between counsel in the present case and Kevin Brooks, a lawyer in the office of the Treasury Solicitor, and myself. The upshot of those communications was that I authorised that both counsel in the present case could send to Mr Brooks on behalf of the Secretary of State for Education their respective skeleton arguments in the present case.

I, myself, said in an email to Mr Brooks late last week:

I should say that when I arrived at court this morning I was quite expecting that the Treasury Solicitor might be present and represented, making some application to participate in the present case and for an adjournment of it. However, when I arrived at court this morning I saw for the first time the skeleton argument of Mr Simon Burrows, who acts as counsel on behalf of the parents and litigation friends of the patient in this case, and saw, therefore, that in fact there was complete consensus between both parties and their counsel in the present proceedings.

I also saw for the first time a further email dated 17^th June 2014 from Mr Brooks of the Treasury Solicitor which it is, appropriate that I should read into this judgment. He wrote with reference to the hearing today, 18^th June, in the present case:

Just pausing there, it can be seen from the first sentence of that email that the number of cases in which the Treasury Solicitor is currently instructed on behalf of the State relate to “children”. It can also be seen from the last paragraph that the Secretary of State has clearly reached a settled decision not to apply to intervene at all in the present case, and in the event that he later wishes to make submissions around this topic it will not be in the present case at all.

I now deal briefly with the formal application that I have already described, which is before me today, by the Official Solicitor in the case of Westminster City Council v NJ & YJ & HGL for consolidation, at least temporarily, of that case with this case. I decline, or refuse, to make any application for consolidation. There are indeed several reasons for that.

First, the only party to the case of Westminster City Council v NJ & YJ & HGL who is before me is the Official Solicitor. There are a number of other parties to that case, namely the Westminster City Council, and the mother of the person concerned, and the providers of the place where the patient in that case currently resides and may be being deprived of her liberty. So this is a very last minute application, made only yesterday, and I have absolutely no idea what the position is of the other parties to those proceedings to the proposition that their case should be consolidated or linked with the present case.

But more fundamentally than that, if I were to consolidate that case with this case I would, of course, as section 2.1(ii) of the application notice quoted at paragraph 13 above contemplates, have to adjourn further consideration of the present case to some later hearing at which all these issues were considered concurrently. Since the Westminster City Council case, as its name indicates, is entirely located in London, it is probable that the present case would have to be transferred, at least temporarily, to London, and in no time at all the parties to the present proceedings would be sucked into expensive and delaying procedures far away in London. Since there is complete unanimity between the parties and their counsel in the present proceedings as to the outcome and also as to the relevant law, it seems to me that that would be highly undesirable, and indeed would have the adverse effect of affecting the overall timetable and imperilling the present hearing, which was highlighted by the President himself on 5^th and 6^th June in a passage that I have already quoted at paragraph 9 above.

Further, as will shortly emerge when I am finally able briefly to summarise the facts of the present case, the situation in relation to the patient the subject of the present proceedings is a time limited and relatively short term one. Bizarrely, if I were to allow the application made by the Official Solicitor and Mr Hallin to consolidate, adjourn and transfer for some set piece hearing in London, it might well eventuate that the patient in the present proceedings had already moved on from the children’s home in question before that hearing had taken place.

So for those reasons, individually and cumulatively, I refuse the application that has been made in the case of Westminster City Council v NJ & YJ & HGL for consolidation. I wish to record, however, that I perfectly understand the basis upon which, and spirit in which, the Official Solicitor, and Mr Hallin on his behalf, have made their application which, indeed, echoes some of the suggestions made by the President himself on 5^th and 6^th June. Further, although I refuse this application, I have appreciated the presence and argument of Mr Hallin today.

After that almost interminably long digression, I now very briefly summarise the factual context of the present application. It concerns a young woman, SG, who was born in early June 1995. Today she is in fact now 19. She was born in Romania and was apparently rapidly abandoned by her parents and taken to a state orphanage there. The first few years of her life appear to have lacked human affection and natural processes of bonding or attachment. When she was about 4 she was adopted by an English couple, who are, of course, now her parents.

As she grew older, it became increasingly plain that she suffers a number of lasting disabilities or disorders. She certainly has learning disability, a disinhibited attachment disorder, and quasi autism. Features of her condition have always been hypersensitivity to external stimuli, and challenging behaviour. More recently there has been a tragic history of self harm. Her childhood has, as a result, been very disrupted. She attended, but was removed from, various schools. She has had to spend long periods in hospitals. More recently she was placed in children’s homes. Challenging behaviour towards staff, absconding, damaging property, episodes of self harm and hitting out at her father have all been recorded.

For some time before she actually attained the age of 18 she was accommodated in a certain children’s home in the area and it is in those actual premises that she remains accommodated to this day. However, now that she has attained the age of 18 and is indeed now 19, it is completely recognised by the responsible local authority, in agreement with her parents, that arrangements must be made to enable her to move on to what is described as “supported living” in the community. This will take time to identify and set up, and, I have no doubt, considerable funding issues will need to be addressed. The local authority need to find a provider who will purchase or otherwise make available a suitable property and recruit a sufficient number of staff to care for her and keep her safe. The plan is that some premises will be found in which she can live together with a small number of other young women with similar needs. I have been told in the words of the skeleton argument on behalf of the local authority that:

Meantime, however, she has continued to live seamlessly in the children’s home where she was living before she attained the age of 18. There, too, she is the subject of very considerable staffing on a 3:1 basis. The staffing includes monitoring her while she is in the bathroom (ensuring her dignity is maintained at all times), locking the front door as a preventative measure, following, observing and monitoring her on visits into the community, and if she “attempts to leave the staff supporting her, they should follow several paces behind her and attempt to maintain conversation.” Items which may be used for self harm will be removed, and she remains supported 3:1 during the day and 2:1 during the night.

It is completely accepted by and on behalf of the local authority that that package of existing measures clearly amounts to a deprivation of her liberty as that concept has now been explained, in particular in paragraph 46 of the judgment of Baroness Hale of Richmond in the Cheshire West case, which I do not need to cite for the purposes of this judgment. Having appreciated in the light of the Cheshire West case that they currently do, and propose to continue to, deprive the patient of her liberty, the local authority commenced the present proceedings in the Court of Protection for appropriate authorisations.

The deprivation of liberty safeguards and a standard authorisation under Schedule A1 of the Mental Capacity Act 2005 are not in point in the present case because the patient is not detained in a hospital or a care home. At a hearing on 6^th February 2014 in Liverpool, a district judge of the Court of Protection made an interim order which included the following interim declaration:

It was about a week after that that the guidance to which I have referred was published. As a result, by a later order dated 8^th May 2014, which was described as being “supplemental to the order dated 6^th February 2014”, the same district judge ordered that:

So, pausing there, one can see from that that in early May that district judge inclined to the view that the language of the guidance had the effect that he could not properly have made declaration 4 that he had earlier made on 6^th February 2014 as set out above.

The matter then came before a different district judge the following day, on 9^th May 2014, when both parties were represented. The order of that district judge on 9^th May 2014 recites as follows:

It should be noted that although that order contained the recital which I have quoted, which clearly indicates the area of perceived difficulty in the case, the district judge did not formulate any precise or particular question that I was asked to address and, indeed, at that stage simply transferred the proceedings generally. However, in the light of the skeleton arguments of counsel, and with their joint concurrence today, I have identified and formulated the actual question as that which I set out in paragraph 2 above.

The way in which that question and the perceived difficulty arises is as follows. Section 121(1) of the Care Standards Act 2000, the interpretation section, defines that in that Act “child” means a person under the age of 18. Section 1(2) of that Act provides that: “An establishment is a children’s home… if it provides care and accommodation wholly or mainly for children.” The premises in which the patient in this case currently resides, and was residing before she attained the age of 18, is premises which have provided care and accommodation wholly or mainly for children in that there were at one time several children resident there. It is currently “registered” as a children’s home pursuant to the Care Standards Act 2000 and regulations made under it.

I have been told today that as a matter of fact no other person (apart from staff) currently resides in those premises apart from the patient. So, on one view, currently it is not providing care and accommodation even “mainly for children”, as no child resides there at all. However, all parties have proceeded on the basis that, notwithstanding the fact that currently no children reside there, it remains a children’s home for the purposes of the Act and the regulations, and I will proceed on that basis and assumption.

Assuming the premises to be a children’s home, the Children’s Homes Regulations 2001 SI [2001] No 3967 are in general terms engaged. Part III of those regulations is entitled “Conduct of Children’s Homes”. Chapter 1 of Part III is entitled “Welfare of Children”. Within Chapter 1, regulations 11 to 24 make a range of provisions with regard to the welfare of children, the food provided to children, communications with children, the protection of children, the behaviour, management and discipline of children, health needs, hazards and safety and other matters.

Of most relevance to the perceived problem in the present case is regulation 17A, which is entitled “Restraint”. Paragraph (1) provides as follows:

Just pausing there, whilst the regulation is prominent, it will be noted that throughout that part of that regulation the references are entirely to “a child”, that phrase being used five times in that short quotation.

The guidance that was issued on 12^th February 2014 states at paragraph 3:

Pausing there, that paragraph contains, if I may respectfully say so, no more than a legal truism. Regulations have the force of law, and no court, frankly, in any circumstances that I can readily think of, can authorise a person or body to act in a way that contravenes a regulation, or still less a statute, so as to be in breach of the regulation or statute. On a careful reading of that paragraph of the guidance, it ultimately says no more than that. The question, therefore, in any case is whether what the Court of Protection is otherwise being asked to authorise would amount to a “breach” of some regulation.

The guidance continues at paragraph 4 as follows:

Pausing there, it is possible (I put it no higher than that) that the accuracy of that part of the guidance is more debatable. It may beg the question of whether paragraph 17A(1)(c) of the regulations is a platform or a ceiling. But that is territory into which I simply should not and do not venture in the present case because paragraph 4 of the guidance is directed to “a child” and, as I have stressed, the patient in this case is not a child.

Finally, in a section that is avowedly headed “In Summary”, paragraph 13 of the guidance provides:

Mr Hallin has pointed out that in paragraph 6 of the guidance, which pertains to residential special schools, there is a reference to “a young person”; but I say nothing about that since, as I have stressed, the present case and judgment has nothing whatsoever to do with residential special schools.

The essential point and difficulty that has been raised by this case, and maybe a large number of other cases, is that readers of the guidance have understood it to be preclude any resort to the Court of Protection at all, in any circumstances in which the premises in which a person (whether a child or an adult) is residing or detained happen to be premises which are a children’s home as defined in section 1(2) of the Care Standards Act 2000. It is, however, necessary to stress and emphasise yet again that the point that has been made in both paragraphs 3 and 4 of the guidance is that the Court of Protection cannot authorise an act which would involve or represent a breach of the regulations. That simply does not arise and is not in point in any case in which the person concerned has attained the age of 18.

I will not quote at length from the various other regulations within Chapter 1 of Part III of the Children’s Homes Regulations 2001, but any reader of them can see that regulation 11, which is concerned with promotion of welfare, refers repeatedly to “children”. Regulation 17, which relates to “Behaviour, management and discipline”, refers repeatedly to “children” or “a child”. I have already quoted regulation 17A (1), and pointed out that that refers repeatedly and exclusively to “a child”. So also does regulation 17A(2). Regulation 17B, which is concerned with “Policies and Records”, refers again and again to a “child”.

The short and simple point is that the relevant parts of the Children’s Homes Regulations 2001 simply do not apply at all in the case of a person who is no longer a child. It may often happen, as it has happened in this case, that the premises in which a person, now adult, resides or is detained happen also to be a children’s home. But it frankly makes no difference whether the premises themselves are a children’s home or are some dedicated premises that have been provided in the community under the kind of “supported living model” contemplated for this very patient in this very case.

In my view, the Court of Protection has undoubted power in the present case to make, if appropriate, an order authorising the deprivation of liberty. Further, it is the duty of the person or body, in this case the local authority, who is or are depriving the patient of his liberty, to apply to the court for an authorisation; and, indeed, the duty of the court to make such authorisation as in its discretion and on the fact and in the circumstances of the case it considers appropriate.

In the present case it is common ground, and there is abundant evidence to support the proposition, that this patient lacks capacity to litigate and to make decisions as to her care and residence, and that it is in her best interests to continue for the time being to reside in the premises which are a children’s home in which she has been residing for some time, and that the deprivation of her liberty which is involved should be authorised.

So for those reasons I, myself, answer the question posed in paragraph 2 above as “yes”, and there will be an order which records that the court does consider that neither the Children’s Homes Regulations 2001 nor the joint guidance issued by the President of the Court of Protection and OFSTED dated 12^th February 2014 prevent the Court of Protection from authorising under the Mental Capacity Act 2005 that a person who is an adult (viz. over the age of 18) may be deprived of his liberty in premises which are a children’s home. There will be appropriate declarations as to the lack of capacity and best interests of the patient and authorising the deprivation of her liberty; and I now transfer this matter back to the Court of Protection sitting in Liverpool where future decision making will be resumed after an appropriate interval by the local district judge there.