X (Child: Deprivation of Liberty: Lack of Placement), Re
[2023] EWHC 3416 (Fam)
A London Borough v LC & Anor
29 August 2023
[2023] EWHC 2179 (Fam)
High Court
A 15-year-old girl in a children's home didn't want to be there and the council wanted to keep her there by locking the doors. The judge said there wasn't enough evidence that she was in danger, so the council can't keep her locked up against her will.
Key Facts
- •A London Borough (Local Authority) seeks court authorization for arrangements depriving CC (15) of her liberty at an Ofsted-registered children's home.
- •CC's mother and guardian oppose the application, arguing insufficient justification for deprivation of liberty.
- •Restrictions include constant supervision, locked doors, no internet access (except via personal phone), and authorized use of reasonable force.
- •CC has unsupervised weekend visits to London, where restrictions are significantly less stringent.
- •The Local Authority's concerns include child sexual exploitation (CSE), absconding, potential threats of violence, and self-harm.
- •Evidence regarding CSE and other risks is deemed insufficient to justify deprivation of liberty.
- •The Local Authority's primary justification shifts to preventing the placement's termination if a deprivation of liberty order (DLO) is not granted.
- •The children's home operator (Cambian) threatened termination without the DLO.
- •CC lacks capacity to consent to the liberty restrictions.
Legal Principles
Deprivation of liberty must comply with Article 5 ECHR (right to liberty and security of person).
Human Rights Act 1998
A DLO is lawful under Article 5(d) ECHR for educational supervision, but must be proportionate.
Storck v Germany [2005] ECHR 406
Children with capacity to consent cannot have their liberty deprived against their will based on parental responsibility.
Lincolnshire County Council v TGA & Ors [2022] EWHC 2323 (Fam); AB v CD & Ors [2021] EWHC 741 (Fam)
The inherent jurisdiction can be used to authorize deprivation of liberty in exceptional cases, but not if it clashes with the statutory scheme (section 25 Children Act 1989).
Re T [2021] UKSC 35 [2022] AC 723
Outcomes
The application for interim relief (authorizing deprivation of liberty) is refused.
Insufficient evidence to justify deprivation of liberty based on risks to CC's welfare; inconsistencies in risk assessment between weekdays and weekends; the primary justification relies on the provider's threat of termination without a DLO, which is not considered a sufficient legal basis.