High Court Addresses Deprivation of Liberty for Child with Complex Needs

Citation: [2023] EWHC 3416 (Fam)
Judgment on

Introduction

In the matter of Re X (Child: Deprivation of Liberty: Lack of Placement) [2023] EWHC 3416 (Fam), the High Court of Justice Family Division was called upon to address the distressing situation of X, a fourteen-year-old girl whose complex needs exceeded the capacity of her family and current systemic provisions. Central to this case is the High Court’s inherent jurisdiction concerning the deprivation of liberty for children when such a measure is deemed necessary and proportionate.

Key Facts

X, who had a history of mental health issues, self-harm, and suicidal ideation, was placed in hospital care under the Mental Health Act 1983. Despite efforts to provide treatment, her disruptive and unsafe behaviours persisted, creating a significant risk to herself and others. An extensive search for a suitable placement yielded no results, forcing the NHS Hospital Trust to seek the court’s authorization to deprive X of her liberty in the interim within the hospital setting. The local authority supported this move and also requested similar authorization for an unregistered (but imminent to be registered) placement they intended for X.

The court relied on various principles guiding the deprivation of a child’s liberty:

  • High Court’s Inherent Jurisdiction: The High Court has the inherent authority to act in the best interests of those unable to care for themselves, particularly children (Re L (An Infant) [1968] 1 All ER 20).

  • Complementary Nature of Inherent Jurisdiction: It serves to fill any statutory gaps in safeguarding society’s interests (Re F (Mental Patient: sterilisation) [1990] 2 AC 1).

  • Deprivation of Liberty under Article 5 ECHR: There must be an objective element of significant confinement, a subjective lack of consent, and the state’s involvement in the confinement.

  • ‘Stork Test’ and ‘Acid Test’: Detail the conditions under which a state can impose deprivation of liberty, including lack of the person’s capacity to consent, continuous supervision, and absence of freedom to leave (Storck v Germany [2006] 43 EHRR 6, Cheshire West and Chester Council v P [2014] AC 896).

  • Limitation of Parental Consent: The consent of a parent to the deprivation does not satisfy Article 5 requirements (Re D (A Child) (Residence Order: Deprivation of Liberty) [2019] UKSC 42).

  • Best Interests of the Child: The necessity for the deprivation must be strictly in the child’s best interests with a paramount concern for their welfare (Re T [2021] UKSC 35).

  • Authorisation and Necessity Principle: Authorization by the court must be critically necessary, following strict compliance with the relevant guidance and regulations (Tameside MBC v L [2021] EWHC 1814 (Fam)).

Outcomes

The court deemed both the hospital and proposed unregistered placements as constituting a deprivation of liberty, meeting the ‘acid test’. However, X’s welfare necessitated this deprivation. The transition to the new placement was authorized, including specific restrictive measures during her transportation. An interim care order by the local authority was granted, supporting the transition following the interim care plan.

Conclusion

In a poignant conclusion, HHJ Moradifar highlighted the systemic failures faced by children like X. The judgment approved the deprivation of liberty as a last resort to address the immediate risks to X and acknowledged the ongoing crisis of finding suitable placements for children with complex needs. The judgment serves as a clarion call for more robust provisions to ensure that each child’s therapeutic, educational, and welfare needs are appropriately met, safeguarding not only their future but also affecting meaningful change within the system tasked with their care.