Legal Update: The High Court provides guidance on what constitutes a confinement for the purpose of determining whether a child is deprived of their liberty

Re A – F Children [2018] EWHC 138 (Fam) The President of the Family Division of the High Court provides “rule of thumb” guidance to assist practitioners in identifying those cases in which restrictions on the liberty of a child amount to a confinement for the purpose of Article 5.

Background

This judgment relates to a number of test cases involving seven children between the ages of 11 and 16, all subject to care orders. The President of the Family Division, Sir James Munby, had reserved judgment pending the Court of Appeal judgment in Re D (A Child) [2017] EWCA Civ 1695, which was handed down in October 2017 and in which the President also gave the leading judgment (see Legal Update). The question which arose in relation to each of the seven children was whether they were deprived of their liberty pursuant to Article 5 and thus required legal safeguards to be put in place.

The Law

Back in 2005, the Strasbourg Court in Storck v Germany established the essential characteristics of a deprivation of liberty, namely:

• The objective component – confinement in a particular restricted place for a not negligible length of time;
• The subjective component – lack of valid consent;
• The attribution of responsibility to the state.

A deprivation of liberty only arises when all three components of the Storck test are satisfied.

Clearly, where a child is subject to a care order there is both involvement and responsibility of the state thus satisfying Storck component (c).  In relation to component (b) of the Storck test, i.e. lack of valid consent, in Re D the Court of Appeal held that a holder of parental responsibility can in certain circumstances provide valid consent to a child’s confinement (providing it falls within the scope of parental responsibility). Where parental consent can be relied upon then no deprivation of liberty arises as the subjective component of the Storck test is not satisfied. However, where a child is subject to a care order or an interim care order the established law is that neither the local authority nor a parent can provide such consent.

All of the children in this case were subject to care orders, therefore, components (b) and (c) of the Storck test were satisfied. The question of whether or not any of the children were deprived of their liberty turned on whether the remaining component (a) of the Storck test was satisfied i.e. was there was an objective confinement?  As we know, the ‘acid test’ for a confinement was set out in the judgment of Lady Hale in Cheshire West in 2014 such that Storck component (a) is satisfied where a person is ‘under the complete supervision and control’ and is ‘not free to leave’. Given that most young children are subject to restrictions from time to time which, prima facie, meet the ‘acid test’, the court in this case considered whether there was an age below which restrictions placed on the liberty of a child would not ordinarily amount to a deprivation of liberty within the meaning of Article 5.

Judgment

The President of the Family Division, Sir James Munby, distinguished a ‘deprivation of liberty’ within the meaning of Article 5 from a ‘restriction of liberty’. He stated that, in the context of children, many aspects of the normal exercise parental responsibility that interfere with a child’s freedom of movement do not involve a deprivation of liberty even if they involve a restriction of liberty or movement. He gave the following examples of restrictions of liberty imposed by parents – sending a child to their room, grounding a teenager or sending a child to boarding school. Munby P added:

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’.

Munby P made clear that in a case involving a child subject to a care order, it was not appropriate to make comparison with a ‘typical’ child of the same age also subject to a care order. The care order was not a relevant comparable factor. Munby P went on to ask himself whether it was possible to identify a minimum age below which a child is unlikely to be ‘confined’ within the Storck definition, hence unlikely to be deprived of their liberty. In answering this question Munby P acknowledged the necessity of proceeding on a case-by-case basis having regard to the actual circumstances of the child but, nonetheless, provided the following ‘rule of thumb’ guidance:

• A child aged 10, even if under pretty constant supervision, is unlikely to be ‘confined’ for the purpose of Storck component (a)
• a child aged 11, if under constant supervision, may, in contrast be so ‘confined’, though the court should be astute to avoid coming too readily to such a conclusion

• once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion

The remainder of the judgment concerns the process to be followed in order to obtain judicial authorisation for a child’s deprivation of liberty.

Comment

This case provides useful clarification on what has been a grey area in respect of identifying when the confinement of a child amounts to a deprivation of liberty. It is particularly useful in the context of children subject to care orders or interim care orders where parental consent to restrictions on a child’s liberty cannot be relied upon to prevent a deprivation of liberty arising.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk