Deprivation of Liberty Orders for children are granted either by the High Court or Court of Protection under the courts’ inherent jurisdiction, which is a general power the court has to make any order if there is no Act of Parliament to cover the making of that order. For children, therefore where the Mental Capacity Act does not apply, and therefore they are not covered by the Deprivation of Liberty Safeguards, an order depriving them of their liberty can only be authorised under the inherent jurisdiction.
The use of inherent jurisdiction to protect children was confirmed in the case of Re T (A child) [2021] UKSC 35. In this case the Supreme Court stated that this power should only be exercised where there is a ‘high degree of necessity’ (para 189),
The inherent jurisdiction plays an essential role in meeting the need as a matter of public policy for children to be properly safeguarded … it provides an important means of securing children’s interests when other solutions are not available. (para 192)
There is a long history of the courts refusing to grant an order depriving a child of their liberty in hospital when the child does not need treatment in hospital and should therefore be in more appropriate community accommodation. Four such cases are:
- Wigan BC v Y (Refusal to Authorize Deprivation of Liberty) [2021] EWHC 1982 (Fam), where the Judge held that the use of inherent jurisdiction would be ‘inappropriate, demeaning and … brutal’;
- A County Council v A Mother & Others [2021] EWHC 3303 (Fam), where the Judge held that depriving the child on the unit would be ‘positively damaging’;
- Nottinghamshire County Council v LH, PT and LT (No. 1) [2021] EWHC 2584 (Fam);
- An NHS Trust v ST (Refusal of Deprivation of Liberty Order) [2022] EWHC 719 (Fam), where the Judge held that authorizing the deprivation of liberty would be ‘brutal and abusive’.
The above cases all followed a similar pattern:
- The child was admitted to hospital following the breakdown of community accommodation due to an escalation in challenging behaviour;
- Detention under the Mental Health Act was not deemed appropriate;
- CAMHS recommended 24/7 community care;
- The hospitals could not offer appropriate care or therapy and wanted to discharge the child;
- The child was medically fit and did not need hospital treatment.
While the children did have mental health issues; varying combinations of ADHD, autism, and learning disability, they were only in hospital to contain their behaviour due to a lack of appropriate community accommodation, not to receive any treatment.
It is clear from the judgements in these cases that the judges were reluctant to authorise a deprivation of liberty in the circumstances, and expressed themselves in varying degrees of un-judicial anger.
In the case of Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] the judge held,
… it would border on the obscene to use the protective [IJ] to authorize Y’s current situation … the fact that there is no alternative cannot by itself justify the continuation of those arrangements. (para 59)
In the case of A County Council v A Mother & Others [2021], the judge refused the application on the grounds that,
I am simply not willing myself to apply a rubber stamp and to give a bogus veneer of lawfulness to a situation which everybody in the court room knows perfectly well is not justifiable and is not lawful.’ (para 37)
In the case of Nottinghamshire County Council v LH, PT and LT (No. 1) [2021], the court refused to exercise its inherent jurisdiction to authorise a deprivation of liberty because,
… authorisation of the deprivation of LT’s liberty in a psychiatric unit which is harmful to her and contrary to her best interests would serve only to protect the local authority from acting unlawfully, it would not protect this highly vulnerable child’. (para 17)
At the return hearing, cited as Nottinghamshire County Council v LH (No 2) [2021] EWHC 2593 (Fam), the judge reiterated it was right to refuse to authorize a deprivation in hospital, but reluctantly granted the authorization at the children’s home because it was deemed a necessary, proportionate, in LH’s best interests.
It is the 2022 case of An NHS Trust v ST (Refusal of Deprivation of Liberty Order) [2022] that has the most serious and concerning restrictions applied to the child concerned. ST was aged 14, with diagnoses of mild learning disability and autism. While under the care of CAMHS, ST lived with her family and was not subject to a Care Order. Due to risks to herself and others, rather than a need for treatment, she was admitted to a general acute hospital against the advice of CAMHS. On the general paediatric ward ST was under 4:1 constant observations, two observers being security guards, and subject to chemical and physical restraint.
The judge held,
I cannot, in all good conscious, conclude that it is in ST’s best interests to authorise the deprivation of her liberty constituted by the regime that is being applied to her on the hospital ward. I cannot, in good conscience, conclude that it is in the best interest of a 14-year-old child with a diagnosis of Autistic Spectrum Disorder and moderate learning disability to be subject to a regime that includes regular physical restraint by multiple adults, the identity of whom changes from day to day under a rolling commercial contract. I cannot, in all good conscience, conclude that it is in ST’s best interests for the distress and fear consequent upon her current regime to be played out in view of members of the public, doctors, nurses and others. I cannot, in good conscience, conclude that it is in ST’s best interests to be subject to a regime whose only benefit is to provide her with a place to be, beyond which none of her considerable and complex needs are being met to any extent and which is, moreover, positively harmful to her. (para 32)
However, in a similar case, that of Re Troy (A Child) [2022], the court held that it was better to keep the child in hospital than in an unregulated placement,
Given there has been no alternative place for Troy to live and that restrictions amounting to the deprivation of liberty have been needed to keep Troy safe whilst living at the hospital, I must give that permission.’
The court went on to justify this decision, stating,
A hospital is not a children’s home and cannot fall within Ofsted’s regulatory regime. A hospital is at least subject to regulation by the CQC and it is not a criminal offence to place a child in a hospital, as it is to place a child in an unregistered children’s home. By Section 27A of the Carer Planning, Placement and Case Review (England) Regulations 2010, as amended in 2021, it is lawful for a local authority to place a child in a hospital. However, the court has still to be satisfied that it is necessary, proportionate and in Troy’s best interests for the authorization to be given. (para 22)
The issues in the above cases followed on from the Supreme Court case of Re T (A Child) [2021] UKSC 35, which involved questions around the use of inherent jurisdiction to deprive a child to an unregulated children’s home. T was 15 years old, under a Care Order but had challenging behaviour, with no psychiatric diagnosis. The court had granted two authorisations for deprivation in two succeeding placements, which T disputed.
This judgement remains the most authoritative regarding the deprivation of liberty of children under the court’s inherent jurisdiction. The judgement outlines three types of children for whom inherent jurisdiction could be used to deprive them of their liberty:
- The child falls under S. 25 Children Act 1989 but there is no placement available;
- The child falls under S. 25 CA 1989 but their needs would be better met in an alternative placement;
- The child needs to be deprived of their liberty to keep them safe.
The judges stated that,
it is unthinkable that the High Court, with its long-established role in protecting children, should have no means to keep these unfortunate children (and others who may be a risk from them) safe from extreme harm, in some cases death. (para 141)
Further,
The inherent jurisdiction plays an essential role in meeting the need as a matter of public policy for children to be properly safeguarded … it provides an important means of securing children’s interests when other solutions are not available. (para 192).
However, the judges were also clear that,
… the courts, in the exercise of the inherent jurisdiction, must only authorise such a placement where there are “imperative considerations of necessity”. (para 170)
After an extensive search for caselaw where children or young people have been deprived of their liberty on a psychiatric unit under the legal authorisation of a court’s inherent jurisdiction, i.e. a DOLO only two such cases were found.
In the case of Re X (Child: Deprivation of Liberty: Lack of Placement) [2023] EWHC 3416 (Fam) the child concerned, X, was 14 years old with diagnoses of depression with psychotic symptoms, anxiety disorder, ADHD, vocal tics, and autistic traits. X was detained under S. 2 MHA from 17 October to 23 November 2023 by which time it was the opinion of the clinicians that treatment in a psychiatric hospital was detrimental to her therapeutic needs. While the NHS Trust and local authority agreed that X was inappropriately placed and she should be moved as soon as possible, it had proved difficult to find an appropriate community placement and therefore she remained in isolation on 3:1 observations in the hospital. In this case the court authorised the DOLO on the grounds that,
… X’s welfare demands that she moves and is placed in the proposed placement. For the duration of her stay in the hospital, there is no option but to approve the continuation of the existing restrictive regime that has already been approved by the court to ensure her safety. Once at the new placement, X will require a high degree of restriction and support to keep her safe and the permissive measures that are sought by the local authority are entirely proportionate which currently present the least restrictive measures that would keep X safe. (para 17)
In the more recent case, Re SB [2024] EWHC 2964 (Fam), the court ordered a deprivation of liberty on a CAMHS general adolescent unit. This case concerned a 15 year old female, diagnosed with autism and learning difficulties. SB was detained under S. 2 MHA on 30 June 2024, due to end on 28 July 2024, but an application to the court to exercise its inherent jurisdiction to authorise a deprivation of liberty was made on 25 July 2024. According to the decision, over a 4-month period SB was the subject of MHA assessments on 6 occasions, involving 8 Consultant Psychiatrists, and her,
… care and treatment has been the subject of intense and active consideration. (para 27)
The dispute before the court in this case was which authority, local authority or health board (SB lives in Wales), was responsible for her care and what legal framework she should be held under, MHA or a DOLO authorised under the inherent jurisdiction. The arguments put forward were that if SB was detainable under the MHA then the court could not exercise its inherent jurisdiction. Therefore the court had to decide if it could determine whether SB was detainable under the MHA. However, the court held that,
There is no authority for the proposition that a court contemplating the exercise of the inherent jurisdiction to deprive a person of their liberty had jurisdiction to encroach upon the issue of whether a person was detainable or could, or would, be detained in a hospital under S. 3 of the 1083 Act. … The court has no jurisdiction to make such findings or order. (para 61)
Given that the court did not look at the alternative of detention under the MHA, the court made the order to deprive SB of her liberty on the psychiatric unit, but did so on the grounds that,
Such an order is both necessary and proportionate having regard to the aim that is sought to be achieved, namely, to prevent SB, in the interim, causing harm to herself or others, pending her imminent discharge to a community placement. (para 68)
This judgement was disappointing, especially since the courts can examine the appropriateness of a person’s detention under the MHA in judicial review proceedings. However, from caselaw, both in cases where the court refused to use its inherent jurisdiction and cases where it did, one can extrapolate some legal principles:
- The State must abide by the ECHR when dealing with a deprivation of liberty for children;
- The best interests of the child is the most important issue, ‘welfare is paramount consideration’ (ST para 27);
- Any authorization of a deprivation of liberty must be necessary and proportionate (Re T para 170, Troy para 22, and Re J para 28).
The questions the court will ask itself therefore are:
- Is there a deprivation of liberty?
- Is it necessary, proportionate, and in the child’s best interests that an order be made?
While in the case of Re SB the judge suggested that examining whether the child could be detained under the MHA was beyond the court’s jurisdiction, it is clear that if presented with evidence that the child could be detained under the MHA there would be no lacuna in the law and therefore the court could not exercise its inherent jurisdiction. But it is also clear that such evidence must be placed before it in order to make that decision.
What is clear is that any deprivation of liberty or detention must comply with rights of the child under the European Convention of Human Rights (ECHR) – put simply, being a child does not exempt a person from the full protection under European and International human rights law.
Generally, the following Articles of the ECHR that come into play when a person is deprived of their liberty:
Article 2 ECHR;
Article 3 ECHR;
Article 5 ECHR.
Article 2 ECHR places a positive duty on the State to safeguard lives, which includes the duty to protect those in hospital from their own actions to take their own life (Fernandes v Oliveira v Portugal [2019] ECHR 106).
Article 3 ECHR places a positive obligation on the State to prevent inhuman or degrading treatment, which includes treatment and care provided in hospital. According to the case of R (on the application of Burke) v General Medical Council [2004] EWCA Civ 1003 the test for a breach of Article 3 is based on what a bystander would think if they were to see the person being treated in such a way,
judged by the standard of right-thinking bystanders … humiliating or debasing the victim, showing a lack of respect for, or diminishing, his or her human dignity’.
Article 5 ECHR places a positive duty to ensure that any deprivation of liberty falls within the listed safeguards, including being of unsound mind, i.e. having a mental disorder. This Article is therefore both the authorization for deprivation of liberty and the safeguard to ensure that the deprivation is carried out within a legal framework.
The case of Rooman v Belgium [2019] ECHR 105 was concerned with the interplay between Articles 5 and 3 ECHR. In this case, which appeared before the European Court of Human Rights, the court held that,
- The conditions of detention are relevant to the lawfulness of detention;
- ‘Any detention of mentally ill persons must have a therapeutic purpose, aimed specifically, and in so far as possible, at curing or alleviating their mental health condition’ (para 208);
- If not, then there would be a potential breach of Article 3 ECHR.
Given this, the outcome of the recent case of VI v Moldova [2024] ECHR 251 is unsurprising. VI was 15 years old and was under care of the State. VI was diagnosed with a mild learning disability, and was deprived of his liberty on a psychiatric ward against his will. The issue for the court to decide was whether the deprivation amounted to a breach of Article 3 ECHR.
The court held that there was no evidence of any medical need for VI to be on the psychiatric unit, and therefore him being there amounted to inhuman and degrading treatment, thus Moldova had breached Articles 3 and 14 ECHR (discrimination against people with disability, in VI’s case his learning disability). In its judgement the court decided that the Moldavian authorities,
perpetuated a discriminatory practice in respect of the applicant as a person and, particularly, as a child with an actual or perceived intellectual disability. (para 175)
The court also suggested that,
…forced placement in a psychiatric hospital and psychiatric treatment, … without medical necessity may amount to ill-treatment prohibited under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. (para 98)
If there is no need for a child to be detained under the MHA because the treatment he is receiving, including the nursing care, is not for a mental disorder but to contain challenging behaviours, an argument could be made that being on a psychiatric unit, even under a DOLO, is a breach of the child’s rights under Article 3 ECHR.