Councils ‘cannot consent to restrictions for children in care’

Family Law|November 20th 2015

Local authorities cannot consent to ‘deprivations of liberty’ for children in care, the High Court has ruled.

The legal term ‘deprivation of liberty’ refers to restrictions on freedom of movement or choice sometimes imposed in the best interests of people unable to consent through age or disability.

Any restrictions of a sufficient degree place on adults must be authorised by the High Court, under the Mental Capacity Act 2005 – and following a new ruling, the same now applies to children.

The new case concerned a 14 year-old who was taken into care after being neglected by his parents. After a stay in foster care he was transferred to a residential care home. The boy had mental health problems, learning difficulties and attention deficit hyperactivity disorder. A social worker concluded that he lacked the capacity to make his own decisions.

In the home, the boy was kept under close observation, not allowed to leave the home or contact his family on his own, or go out of his room at night. He was also given sedatives.

These arrangements had amounted a deprivation of liberty, ruled Mr Justice Keehan in the High Court.

The Judge wrote:

“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 …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.”

Allowing a local authority to authorise a deprivation of liberty without consulting the courts would amount to a breach of Article 5 of the European Convention on Human Rights, which states clearly that “no one should be deprived of his liberty save … in accordance with a procedure prescribed by law”. It would also be in breach of domestic law.

A Local Authority v D & Others is available here.

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  1. gwyn says:

    Very interesting to know the facts
    Thank you

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