Keywords: Children; Care proceedings; Deprivation of Liberty
This case concerned RD, a 14 year old residing in a specialist residential placement (Lennox House). The key question was whether RD was deprived of her liberty (Article 5 EHRC) in this placement.
Lennox House, originally a working farm, was a large detached house in a rural setting in Scotland with 4 staff supporting 6 young people. RD was recorded as saying that she did “not feel watched over all of the time”, and felt “safer” than she had at any time in her life before. She was free to move around Lennox House and a lock on the door of her room was under her control. She had a lot of contact with staff. Staff were generally present in communal areas, but RD was free to spend time alone in her room when she wished. She was allowed to spend time outdoors in the grounds of Lennox House, but was watched from a distance by staff. RD also made trips into the community but these were accompanied by a member of staff. An important issue was the extent to which the presence of staff was for the purpose of support as opposed to supervision.
Deprivation of liberty under Article 5 has three elements (Storck):
- The objective element of a person’s confinement to a certain limited place for a not negligible length of time;
- A lack of valid subjective consent to the confinement in question
- Confinement imputable to the State.
Elements 2 & 3 were satisfied here. RD lacked Gillick competence to consent to her placement (see In re D ). She was under an interim care order, therefore her parents could not validly consent on her behalf and nor could a local authority. RD’s accommodation was clearly imputable to the state.
The case therefore centred on whether element 1 was satisfied by the facts of RD’s placement. That is, whether her circumstances fulfilled the ‘acid test’ laid down in Cheshire West: “continuous supervision and control of those caring for her, and not free to leave the place where she lives.”.
Cobb J was in no doubt that RD was not free to leave (in the sense of choosing to live somewhere else), whilst noting that young people under 16 are usually typically not ‘free to leave’ their home, as a result of lacking alternative options.
Cobb J identified some key elements drawn from Cheshire Westand subsequent cases which needed to be considered in determining whether RD was subject to “complete supervision and control”:
- The purpose of the living arrangements (i.e. therapeutic), compliance or lack of objection to those arrangements and the relative ‘normality’ of arrangements were not relevant to an objective view as to whether they constituted a deprivation of liberty;
- What constitutes a deprivation of liberty must be the same for everyone, regardless of physical or mental disability;
- The appropriate comparator was a typical non-disabled child of similar age, family background and relative maturity living at home with their parents and it was important to recognise that the normal exercise of parental responsibility may restrict a child’s freedom of movement in ways that do not amount to a deprivation of liberty (e.g. ‘grounding’ teenagers);
In applying these considerations to the facts of the case, Cobb J took the view that the level of monitoring of RD was not any more intense or overt than ‘parental watchfulness’. He highlighted that RD was permitted to walk in daylight to a nearby village shop without being accompanied by a staff member and that the reasons for staff to accompany RD on more distant excursions were, in part, due to the rural location and therefore distance of Lennox House from other locations. He also identified that short term increases in the level of supervision following behavioural incidents or absconding were similar to appropriately imposed boundaries and sanctions that any young person of similar age might typically be subjected to. He also considered relevant that the primary purpose of the presence of staff was to provide the support and attention which RD, because of her needs, required, concluding that 1:1 attention and support was qualitatively different from 1:1 supervision and noting that RD did not feel “watched” all the time.
Cobb J concluded that the regime for RD at Lennox House involved restrictions but that these were of the type which a typical child would have placed upon them. Although a finely balanced decision, overall the restrictions did not possess the ‘degree or intensity’ to amount to a deprivation of her liberty.
This case again illustrates the challenges involved in identifying deprivation of liberty in relation to children and young people in residential care settings. The comparison with a ‘typical’ child is often, as in this case, a complex matter. It is notable that, while setting out that disregarding the purpose of the living arrangements is one of the essential elements in determining “complete supervision and control”, Cobb J nevertheless points to the purposes of staff presence being to provide support and attention and contrasts these with supervision. Similarly, while stressing the comparison with a typical child who “is free from disability”, Cobb J nevertheless identifies that 1:1 attention/support is provided because of RD’s ‘needs’. A greater level of supervision is also justified on the basis of RD’s presentation as younger than her chronological age but the likelihood of a relationship between this ‘presentation’ and RD’s “complex, therapeutic needs” is not addressed.
On a practical level, however, this case again illustrates that even relatively restrictive regimes in community-based residential provision are unlikely to amount to a deprivation of liberty for a young person under 16.