RD (Deprivation or Restriction of Liberty), Re

The court is concerned in this application with the circumstances of RD. She is 14½ years old. She is currently the subject of an application for a care order under Part IV Children Act 1989 (‘CA 89’), and is in the interim care of Northumberland County Council (“the Local Authority”). Her mother is MD, and her father FD. RD has two older sisters (aged 21 and 17 respectively) who both live away from home; she has a younger sister (aged 12) who lives at home, and who is the subject of a supervision order made in March 2018 in favour of the Local Authority.

RD has had a damaged and disrupted early childhood, which has left her with a wide range of complex therapeutic needs (see [6] below); her parents accept that they cannot currently meet these needs for RD at home. RD has been placed by the Local Authority at a residential placement in Scotland, which I shall call Lennox House. RD has been at Lennox House for nine months, and is reasonably well-settled there; it is acknowledged that, objectively, the placement is successfully meeting her needs.

The issue for my determination is whether the regime which applies to RD at Lennox House deprives her of her liberty in such a way as to engage her Article 5 ECHR rights. The Local Authority maintains that it does not (though the social worker herself acknowledges that the court is in a better place than her to judge this); the Local Authority’s position is supported by the Independent Reviewing Officer. RD’s Guardian considers that, while the placement is entirely suitable, the regime at Lennox House does deprive RD of her liberty under Article 5. RD’s parents are neutral on the issue. All advocates agree that this is a finely balanced, fact-specific, decision.

The implications of my determination are not insignificant. If I were to find as a fact that RD is deprived of her liberty in Article 5 terms, I would feel obliged to adjourn the Part IV proceedings, and would propose that the Local Authority present a petition to the nobile officium of the Court of Session seeking authorisation of that Court for RD’s deprivation of liberty; this was the route I proposed in Northumberland County Council v S [2017] EWHC 2432 (Fam) at [20], but which, given a change of circumstances in that case was not in the end pursued. If I find that she is not deprived of her liberty, then there would be little impediment to my concluding the Part IV proceedings in this jurisdiction.

There is no dispute as to the essential facts; the dispute is as to whether the facts lead to the conclusion that Article 5 ECHR is engaged. No party called for oral evidence. I have been particularly assisted in considering the issues by the written and oral advocacy of Miss Fenwick and Mr Wilkinson, who have presented their arguments with considerable skill.

It is unnecessary for me to rehearse an account of RD’s early childhood history. It is sufficient for me to record that RD was accommodated by the Local Authority first under section 20 CA 1989 in July 2017. At that point, it was acknowledged that her life in the care of her parents had become significantly harmful to her; she had been sexually abused; she had received a poor education (through non-attendance and non-engagement); she had become involved in inappropriate relationships; she had been drinking alcohol and smoking; she had taken part in other forms of unboundaried behaviour. The threshold criteria under section 31 CA 89 are not contested in this case. RD’s parents accept that they have been unable to exert proper control over RD, and as a result of this she was exposed to harm, particularly sexual harm. The parents accept that they exercised insufficient oversight of both younger children’s relationships with men who posed a sexual risk to the children. It is further accepted that the parents have failed to offer their younger children a good enough level of general parenting as a result of which the children were put at risk of serious harm.

Once accommodated in July 2017, RD was placed in a foster home. The placement broke down, as did a succession of further foster placements. Consequently, in September 2017 RD was moved to Lennox House. She initially struggled to settle, and the early phase of this period was peppered with incidents of disruptive behaviour. From time to time she left the home in a state of upset, but when she did so, she returned of her own accord, or was successfully persuaded to return; during all periods when she was off site, she was never out of sight of staff.

Increasingly, RD began to recognise the value of being at Lennox House; the Guardian visited her there after a month, and noted that she looked healthier and happier. At that visit, RD confirmed to the Children’s Guardian that she knew she needed to stay at Lennox House, despite missing her family. Later in October 2017, RD was assessed by the Consultant Clinical Psychologist, Dr. Ursula Cawthorne, who reported that: “[RD] told me that this placement is her twelfth placement. She does not want to move again”.

Having missed a significant phase of education, RD transitioned back into school for altogether 4 full-days and a half-day per week. On re-entering the school system, RD struggled with some of the basics of reading and writing but has made commendable progress. The school, which is run by the same organisation as Lennox House, is a one-hour’s drive from Lennox House.

After three months at Lennox House (15 January 2018), the Local Authority drafted a care plan containing the following comments:

“[RD] has settled well into her current placement which has provided her with the stability which she requires at this time. [RD] is accessing education, is receiving safe and consistent care and has started to form relationships with key staff and is receiving therapeutic support”.

The early part of 2018 saw increasingly settled behaviour from RD. However, in May 2018, RD absconded from the school premises on three occasions. RD explained that she absconded at this time not because she wanted to escape the regime at Lennox House or school, but because she craved adult attention. Following these abscondences, the levels of general supervision of RD were temporarily increased.

It is acknowledged by the Local Authority and by the Children’s Guardian that RD is not ‘Gillick competent’ to make her own decision about her placement. As to her wishes and feelings, RD told Dr. Cawthorne:

“She understands the reasons for the decisions made and there is an element of her that agrees with this. She does have moments of wanting to go home, which is perfectly natural, however on the whole it is clear that she understands that her needs at the moment are best met in the current placement”.

The social worker reports that she is, and has been, somewhat changeable in her attitude to Lennox House; overall it is felt that she feels safe there, and wants to remain.

RD is said to be “a likeable young girl” (Children’s Guardian), a “very kind, polite and caring young woman” (Lennox House staff), albeit an “incredibly vulnerable” young person (social worker). She “is able to get along with others. She is a good communicator…” (Dr. Cawthorne). Significantly, she presents younger than her chronological age.

Lennox House is a large detached house in a rural setting in Scotland, which was originally a working farm. It is on the outskirts of a village, sitting high in its own grounds and is accessed via a winding drive over a large grassed area with steep banks leading up from the road. The drive leads out onto a reasonably busy and fast ‘A’ road; pedestrian access to Lennox House along that road would be risky in low light, darkness or poor weather. By reason of its rural location, most of the outings taken by young people away from Lennox House have to take place in the company of a member of staff, principally to provide transport. It is somewhat less than one mile (0.7 mile) to the local village, and about 5 miles to the local town.

Lennox House provides therapeutic accommodation for six young people; staff to resident ratio is 4:6. Currently there are three other girls and two boys at the home, with an age range of 12-17; the 17-year old resides in a separate cottage in the grounds of Lennox House. I am advised by the social worker that staff involvement is not seen by them as ‘supervision’ as such, “but staff are always on hand to intervene if required”. That said, staff assist with the preparation of meals, laundry and other domestic tasks. Meals are eaten ‘family style’. RD has said that she “does not feel watched over all of the time”, and “feels safer” than she has at any time in her life before.

RD’s behaviour within Lennox House has in some measure influenced the extent to which her movements have been circumscribed. Thus, as RD settled at Lennox House last year and earlier this year, so were levels of supervision and monitoring relaxed. It is currently expected that as RD’s behaviour improves, the level of supervision will again reduce. When she has been emotionally distressed in the home, particularly initially and latterly, higher levels of support than her peers have been justified. I have been careful to assess what properly represents support and what represents supervision, and to assess whether supervision of her, and control of her movements, is ‘constant’ (Footnote: ¹).

From the documents filed, I have collected the following key information about RD’s current regime at Lennox House:

Inevitably, given the wide range of ages of the residents at Lennox House, the levels of supervision and monitoring afforded to each subtly differs. I do not have the care plans of the other residents but I am advised that generally RD is not, for her age, generally treated differently from other residents in terms of supervision and surveillance at Lennox House. It is the view of the social worker that the levels of supervision are typical for residential therapeutic settings of its kind. That said, as I have indicated above, an increased level of supervision for RD is currently in place particularly when she is at school because of her recent abscondences.

The Guardian has established (at my request) that no other young person at Lennox House is the subject of any court declaration or court order in respect of deprivation of liberty under Article 5. This fact is to some extent acknowledged by counsel to be ‘informative’ of my assessment of RD’s circumstances and status: it may suggest that other relevant authorities have taken the view that the regime at Lennox House does not engage Article 5. However, in the absence of more detailed relevant information, I also recognise that:

The right protected by Article 5 ECHR is the right “to liberty and security of person”, with its complementary right not to be “deprived of … liberty”. That right is qualified within the Convention in specified respects, none of which are applicable on the facts of this case. The right enshrined in Article 5 ECHR is buttressed in this context by the United Nations Convention on the Rights of the Child, which provides (at Article 37) that:

“States Parties shall ensure that:

…

(b)

No child shall be deprived of his or her liberty unlawfully or arbitrarily. … The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c)

Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall … have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances." (emphasis by italics added).

Neither Convention referred to above contains a definition of ‘liberty’. Nor is it easy to define. In P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19 (“Cheshire West”) it was described thus:

“Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. Nor is it diminished by one’s lack of capacity.” (Lord Kerr [76]).

In this definition, the Supreme Court drew (Footnote: ³) from the well-known case of Guzzardi v Italy [1980] 3 EHRR 333 at 92-93 in which it was said that:

“… in proclaiming the "right to liberty", paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. … the paragraph is not concerned with mere restrictions on liberty of movement…

In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.

“The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends”.

As Miss Fenwick and Mr Wilkinson have rightly identified, determination of RD’s Article 5 rights in this context depends on the application of the three limbed test set out in the case of Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96, para 71, and 74 (“Storck”) (Footnote: ⁴), a case concerning a German national and her confinement to different psychiatric hospitals and her medical treatment. This case clarified that deprivation of liberty under Article 5 has three elements:

It is of course only where all three components are present that there is a deprivation of liberty which engages Article 5 (see Re A-F [2018] EWHC 138 (Fam) (‘Re A-F’) at [9]). On the facts of this case, I can dispose of Storck (ii) and (iii) reasonably summarily.

Storck (ii): Lack of a valid subjective consent. There is no issue here that no party can consent to RD’s confinement at Lennox House. The Guardian is satisfied – a point on which no one demurs – that RD does not have the capacity or Gillick (Footnote: ⁵) competence to give her consent to her deprivation of liberty (Footnote: ⁶). Where a child is (as here) subject to a care order (whether interim or final) a parent cannot exercise their parental responsibility in such a way as to provide a valid consent for the purposes of Storck component (ii) (Footnote: ⁷), and nor can a local authority. For that final proposition see the judgment of Keehan J in Re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160, paras 26-29:

“"Where a child is in the care of a local authority and subject to an interim care, or a care, order, may the local authority in the exercise of its statutory parental responsibility (see s.33(3)(a) of the Children Act 1989 ) consent to what would otherwise amount to a deprivation of liberty? The answer, in my judgment, is an emphatic "no". In taking a child into care and instituting care proceedings, the local authority is acting as an organ of the state. To permit a local authority in such circumstances to consent to the deprivation of liberty of a child 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 (per Lady Hale in Cheshire West at paragraphs 56 and 57)" at [29] (emphasis by italics added).

Storck (iii): There is no doubt but that, on the facts of this case, RD’s accommodation is imputable to the State. She is in the interim care of the Local Authority under a Part IV CA 1989 order. Where a child is subject to a care order (whether interim or final) it is obvious that there is involvement and “responsibility” by the State satisfying Storck component (iii) – both the State in the form of the court and the State in the form of the local authority named in the care order (see Re A-F [10]).

So I turn to Storck component (i).

What amounts to actionable confinement in (i) above has generated much jurisprudence both domestic and European. The considerable body of case law can be helpfully pared down for present purposes to ‘the acid test’ (the phrase used at [48]/[54]/[105] of Cheshire West) of whether a person is under the “complete supervision and control of those caring for her, and is not free to leave the place where she lives.” The origin of this acid test has been extensively rehearsed in the authorities on this point (Footnote: ⁸), and requires no reiteration here.

For present purposes, I can pare the test down further still. Two phrases fall for scrutiny under the ‘acid test’: (1) “complete supervision and control” and (2) freedom or lack of freedom “to leave the place where she lives”. The second of these phrases on these facts has no application. ‘Free to leave’ does not mean leaving for the purpose of some trip or outing approved by those managing the institution; it means leaving in the sense of removing herself permanently in order to live where and with whom she chooses (Footnote: ⁹). It is accepted wisdom that a typical fourteen or fifteen-year old is not free to leave her home. As Sir James Munby P observed in Re A-F at [31](i):

“[T]he realities of the modern world, driven in significant part because the school-leaving age is now sixteen and by consequential changes in the employment patterns of young people, mean that the typical child who is not yet sixteen years old is not economically active and lives – in reality has no choice but to live – at home. So, the typical child of fifteen is, in the sense in which the expression is used in the case-law, not free to leave the place where they live. If the fifteen-year old child runs away, wanting to live on their own, they will probably not get social housing and, if not taken into care, are likely to be returned home to live either with the parents or with other relatives” (emphasis by italics added)

Thus, I am satisfied that RD is not ‘free to leave’ Lennox House.

The core issue here (as it was in Re A-F see [32]) is whether RD is under ‘complete or constant supervision and control’. I take the view that ‘complete’ or ‘constant’ defines ‘supervision’ and ‘control’ as indicating something like ‘total’, ‘unremitting’, ‘thorough’, and/or ‘unqualified’.

I have been addressed at some length (in writing and orally) on the law, but regard it as convenient for this judgment simply to highlight the following passages from the judgments in Cheshire West as of importance and relevance here:

The ‘acid test’ has to be directly applied on each case to the circumstances of the individual under review. Where that individual is a child or young person, particular considerations apply: per Sir James Munby P in Re A-F at [30]:

“At what point in the child’s development, and by reference to what criteria, does one determine whether and when a state of affairs satisfying the “acid test” in Cheshire West which has hitherto not involved a “confinement” for the purposes of Storck component (a), and where Article 5 has accordingly not been engaged, becomes a “confinement” for that purpose, therefore engaging Article 5 (unless, that is, a valid consent has been given by someone exercising parental responsibility)?” [30]

Sir James Munby P answers the question in part by referring (at [31](ii) op. cit.) to the fact that:

“… children nowadays tend to live more regulated and controlled lives than children of the same age would have been used to a generation or two back. The ubiquity of the motor vehicle in modern Britain, accompanied by changes in social attitudes as to what is or is not 'responsible parenting', mean that the street is no longer as safe (or seen as being as safe) an environment as it once was. It is no longer as safe (or seen as being as safe) as it once was for children to play in the street, to be allowed to roam or even to go to and from school under their own steam”.

And that (referring back to Judge LJ in Re K) ([31](iii) op. cit.):

“… many aspects of the normal exercise of parental responsibility that interfere with a child's freedom of movement do not involve a deprivation of liberty engaging Article 5”.

Finally adding at [33] (op. cit.):

“whether a state of affairs which satisfies the "acid test" amounts to a "confinement" for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability".

As Lord Kerr said in Cheshire West “All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances.” [78].

Before leaving this section, it is important to acknowledge that in England and Wales the inherent jurisdiction can be, and with increasingly frequency is, invoked to provide for a child or young person to be placed at, and remain in, a specified institution such as, for example, a hospital, residential unit, care home or secure unit. It is equally clear that the court’s powers in this jurisdiction (although not it appears currently in Scotland) extend to authorising that child or young person’s detention or deprivation of liberty in such a place and the use of reasonable force (if necessary) to detain him/her and ensure that he/she remains therein: see In re X (A Child) (Jurisdiction: Secure Accommodation), In re Y (A Child) (Jurisdiction: Secure Accommodation) [2016] EWHC 2271 (Fam), [2017] Fam 80, para 32. That power can only be exercised if necessary and proportionate to do so.

I regard this (as the advocates do – see above [3]) as a finely balanced decision.

With the recent swell in case-law in this area, it is increasingly easy to identify and articulate the exalted legal principles in play, as I have endeavoured to do above, it is a far more challenging exercise to apply them to the individual facts of a given case.

My primary focus is, and has been, firmly on RD and on her actual circumstances at Lennox House. I have sought to isolate from the statements and reports filed those features of her life there which are relevant to the issues in play (see [18] above). It has been necessary for me to examine whether these features amount to a regime of “complete supervision and control”, when compared with the notional circumstances of the typical child of the same age, station, familial background and relative maturity who is free from disability. That comparable child would, I am conscious, be a child whose life is likely to be “more regulated and controlled” than would be the case some years ago (see Re A-F at [31](ii), quoted at [33] above). Consistent with this approach is the fact that, as earlier indicated ([30] above), I am satisfied that RD is not “free to leave” Lennox House permanently any more than a 14-year old would be “free to leave” her family home.

The impression I have formed from the statements and reports is that the regime at Lennox House is boundaried, yet supportive. Naturally the staff keep watchful eyes on the young residents, particularly when they cluster, but I do not discern that this level of monitoring is any more intense or overt than a parent’s watchfulness over young adolescent people in a domestic setting, in similar circumstances. The presence of staff in the home is, I am satisfied, in significant measure to give the young people support and attention. These young people, because of their needs, require 1:1 attention and support at times; this is qualitatively different from 1:1 supervision. RD avowedly craves this kind of attention. Contrary to the submission of Mr. Wilkinson, I am not persuaded that the staff ratio indicates of itself that the residents are subject to complete or constant supervision and control.

It is the issue of supervision or surveillance and/or control which gives rise to the most difficult question on the facts of this case: i.e. to what extent the ‘supervision’ of the staff over RD is different from the watchful eye or supervision of a reasonable parent? It is not immaterial to my assessment that RD is described as a 14-year old who appears younger than her chronological age (see [14] above). It is fair to reflect that the degree of supervision may well be greater for her given her ‘younger’ presentation or late evolving maturity than it would be for a more mature 14-year old. Nor is it immaterial that RD herself does not feel “watched” all the time (see [16] above), which in itself is a reflection of the actual extent of the supervision.

The monitoring of RD as she ventures out into the grounds of Lennox House ([18](viii) above) is, it seems to me, ordinary quasi-parental good sense. The fact that Lennox House stands on a busy road would be a matter of concern to any parent; a rash and unthinking excursion onto the road by any young person would place them at risk. As I have earlier indicated, the fact that the staff accompany RD and her parents on some but not all of her contact visits ([18](xi) above) is more by way of support than supervision, particularly given that the parents have struggled with RD’s behaviours in the past; moreover, and not insignificantly, the parents are unfamiliar with the local area, and without transport on their visits.

There are restrictions on RD’s movement, for sure. She does not enjoy the freedoms to wander in to a town as a 14½ year old young person may have the opportunity to do if living in an urban area. This restriction at least in part (perhaps a significant part) arises because of the geographic location of Lennox House – its distance from the local town and village, its distance from school, and is not in my finding because it is a function of any ‘complete control or supervision’ of the State. Restrictions of movement in this way do not engage considerations of ‘deprivation’ under Article 5 (see Guzzardi above). I am satisfied that when the staff regard it as safe for RD to be able to pay a visit independently to the local village shop (involving a walk along the A road in daylight), they let her do so, much as a parent may well do.

Plainly when RD’s behaviour (her abscondences, disobediences, and/or her distress) justify some restrictions on her movement, these are appropriately applied and enforced; but every 14-year old is liable to appropriately imposed boundaries and sanctions. One of the obvious consequences of behaviourally acting out (for whatever reason) has been, for RD, the increase in the level of supervision, albeit for a short time. This is not altogether surprising; just as parents may temporarily ‘ground’ a teenager, or a boarding school head may impose limitations or tighter restrictions on a pupil’s ability to leave the campus, there is an element of ‘teaching a lesson’ aswell as promoting future safety (see Re K at [32] above). Generally, RD has the freedom to wander around the home, and it seems to me that she enjoys a significant degree of autonomy about her recreation there while not at school.

On the occasions when RD has temporarily absconded, she has either returned to Lennox House voluntarily, or by persuasion. As Sir James Munby P said in Re A-F at [31](i) (above) if a 14 or 15-year old child runs away from home, wanting to live on their own, they are likely to be returned home. It is as simple as that. I have read of no occasion on which RD has been forcibly restrained or detained in order to secure her return, and even if she had, I would require persuading that this would reflect anything other than reasonable and effective parental authority. It does not amount to ‘complete control’.

I am conscious not to allow the protective or “comparative benevolence” (see [32](i)/(ii) above) of Lennox House or its regime (i.e. the fact that it is a therapeutic resource which is achieving much positive benefit for RD) distract me from the essential assessment of the liberty enjoyed (or not enjoyed) by RD there. Nor can I be diverted by the fact that RD generally recognises the value of her placement, is mainly compliant with its regime (see [32](v)) and for the main part expresses an acceptance of the value of remaining there. But these factors inevitably contribute to my assessment of the lower level of ‘intensity’ of the supervision or control at Lennox House.

All children are, or should be, as I have discussed subject to some level of restraint, adjusted to their degree of maturity; so too is RD. It is against that background that I assess RD’s situation. Having reviewed all the circumstances, and for the reasons which I have set out above, I have reached the conclusion, on a fine balance, that the regime at Lennox House does not possess the “degree or intensity” of complete control or supervision of RD which justifies the description of ‘deprivation’ of her liberty. In my judgment, insofar as the staff impose limits or boundaries on her movements and freedoms, these represent restrictions of the type which a child of her age, station, familial background and relative maturity would have placed upon her.

From all that I have read I am wholly satisfied that the placement of RD at Lennox House is meeting her needs; the distance from home is regrettable but the benefits of this particular resource outweigh the practical difficulties which distance creates. It is greatly to RD’s parents’ credit that they (together with their younger daughter) have conscientiously made the long journey (multiple changes of train) to visit RD fortnightly, visits which RD greatly values.

That determination paves the way for resolution of the case. I will invite the advocates for the parties to collaborate over the terms of a final order which I will be pleased to review without the need for a further oral hearing.

That is my judgment.