An order providing that a child should stay in secure accommodation, was an order which restricted the child’s liberty. A justification for such a restriction had to be brought within the exceptions listed in article 5.
Held: Detention for educational supervision was permitted, and such supervision was not restricted to education in the sense of tuition in a school setting, but could be extended to include education in the more general sense of the exercise of parental rights by an authority in whose care the child was. Such an order did not therefore conflict with the child’s article 5 right.
The order was in conformity with the Convention as it came within the wide language of Article 5(1)(d) as being detention of a minor by lawful order for the purpose of educational supervision.
Judge LJ said: ‘There was some interesting discussion about the way in which parents restrict the movements of their children from time to time by, for example, putting young children into bed when they would rather be up, or ‘grounding’ teenagers when they would prefer to be partying with their friends, or sending children to boarding schools, entrusting the schools with authority to restrict their movements. All this reflects the normal working of family life in which parents are responsible for bringing up, teaching, enlightening and disciplining their children as necessary and appropriate, and into which the law and local authorities should only intervene when the parents’ behaviour can fairly be stigmatised as cruel or abusive. . . If the restrictions necessarily imposed on K for his own safety and that of others were imposed on an ordinary boy of 15, who did not pose the problems requiring a secure accommodation order, in my view, there would be a strong case that his parents were ill-treating him. As it is the local authority have been obliged, as a ‘last resort’, to seek authorisation to impose restrictions on the boy’s liberty which would otherwise be unacceptable, whether imposed by his parents or anyone else. That, as it seems to me, is the point of the unequivocal statutory language. The purpose is to restrict liberty, and there would be no point in such a restriction or the need for it to be authorised by the court, if it were not anticipated that much more was involved than ordinary parental control . . In short, although normal parental control over the movements of a child may be exercised by the local authority over a child in its care, the implementation of a secure accommodation order does not represent normal parental control . .
Therefore the restriction in Article 5(1)(d) is specifically directed to the situation of those minors who are beyond such normal control. Prosecution and punishment do not invariably present the most efficacious solution to the behavioural problems of children and young persons, and their long term development, whether viewed entirely as a matter of their own self-interest or the general benefit of the community as a whole. There is much to be gained if the underlying causes of the misbehaviour of a child or young person can be examined and addressed. Hence the need to allow restrictions on the liberty of minors with such problems, which goes beyond normal parental control and allows for the educational supervision.’
Butler-Sloss P said: ‘A child can be the subject of a secure accommodation order in circumstances in which the local authority does not share parental responsibility with the parents. It is a benign jurisdiction to protect the child as well as others: see In re W (Secure Accommodation Order: Attendance at Court)  2 FLR 1092, 1096 per Ewbank J, but it is none the less restrictive. If a parent exercised those powers by detaining a child in similar restrictive fashion and was challenged to justify such detonation, for my part I doubt whether the general rights and responsibilities of a parent would cover such an exercise of parental authority. It might be permissible for a few days but not for nearly two years.’
Dame Elizabeth Butler Sloss P, Thorpe LJ
Times 29-Nov-2000, Gazette 15-Dec-2000,  1 FLR 526,  Fam 377,  2 WLR 1141
England and Wales
Cited – M (A Minor), Re Judicial Review QBNI 30-Jan-2015
The judicial review application is concerned with the lawfulness of the arrangements which have been made by the Trust in respect of M’s placement at X Care Home. These arrangements have arisen from the particular circumstances and background of M. . .
Cited – Re D (A Child) CA 31-Oct-2017
The court considered an order effectively depriving child D of his liberty. . .
Cited – RK v BCC and Others CA 20-Dec-2011
A young woman aged 17 suffered from autism, attention deficit hyperactivity disorder and severe learning difficulties, as well as epilepsy. She had been looked after at home for nearly 16 years but was then accommodated by the local authority under . .
Cited – Re D (A Child ; Deprivation of Liberty) FD 31-Mar-2015
The child, now 15 suffered several conditions which led to his challenging behaviour. He had been voluntarily admitted for assessment, and awaited placement in the community, but the Health trust now sought directions confirming the lawfulness of . .
Cited – Birmingham City Council v D CoP 21-Jan-2016
D was a young adult with several disorders presenting challenging behaviour. The Hospital sought arrangements allowing control over him for his care and education. . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.
Education, Children, Human Rights
Updated: 18 April 2022; Ref: scu.81968