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 section 20 of the Children Act 1989 in a private care home. In proceedings brought by her mother in the Court of Protection, the Official Solicitor raised concerns that her living arrangements might amount to a deprivation of liberty. Mostyn J held: first, that the provision of accommodation under section 20 could never amount to a deprivation of liberty because the parents must have agreed to it; and second, that in any event the restrictions authorised by her parents did not amount to a deprivation of liberty.
Held: In relation to the first, the Court of Appeal upheld the consensus reached at the Bar: ‘that an adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However, restrictions so imposed must not in their totality amount to deprivation of liberty. Deprivation of liberty engages the article 5 rights of the child and a parent may not lawfully detain or authorise the deprivation of liberty of a child.’
However, the Court of Appeal went on to hold that the restrictions imposed did not amount to a deprivation of liberty: they ‘were no more than what was reasonably required to protect RK from harming herself or others within her range’
Judges:
Thorpe, Gross LJJ, Baron J
Citations:
[2011] EWCA Civ 1305, [2012] COPLR 146
Links:
Jurisdiction:
England and Wales
Citing:
Cited – In Re K (A Child) (Secure Accommodation Order: Right to Liberty) CA 29-Nov-2000
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 . .
Cited by:
At First Instance – 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.
Health
Updated: 18 April 2022; Ref: scu.451908