Re T (A Child)  EWCA Civ 2136
"This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act 1989, s 25 (CA 1989)."
39 Essex Chambers have kindly agreed for the following summary to be reproduced below. The remainder of the newsletter can be read here: 39 Essex Chambers, 'Mental Capacity Report' (Issue 89, October 2018).
Deprivation of liberty: when is consent irrelevant?
Re T (A Child)(Court of Appeal (Sir Andrew McFarlane P, Moylan and Jackson LJJ))
Article 5 ECHR – deprivation of liberty – children and young persons
The issue in this appeal was whether a lack of valid consent was a pre-requisite to the exercise of the inherent jurisdiction authorising the restriction of the liberty of a young person in the equivalent of secure accommodation. The inherent jurisdiction is being increasingly used because of a lack of secure placements approved by the Secretary of State. As a result, there are two parallel processes for authorisation: one being s.25 of the Children Act 1989 (‘CA’); the other the inherent jurisdiction. In that regard, the Court of Appeal expressed its real concern that so many applications under the latter are having to be made outside the statutory scheme and safeguards laid down by Parliament under the former (paras 5, 88-90).
The young person (aged 15 at the time of the first instance decision; now 16) was considered to be both Gillick competent to and actually consenting to the proposed care regime. The degree of restrictions on her liberty were such that, if the placement was in a unit registered as a secure children’s home, it would have required authorisation under CA 1989 s.25. At first instance Mostyn J accepted that a lack of valid consent had to be established for the purposes of the subjective element of Storck. And that such consent had to be authentic and enduring which, on the facts, it was not.
After reviewing the Strasbourg and domestic authorities, the President (giving the sole reasoned judgment of the court) held that a lack of valid consent was not a jurisdictional pre-requisite either for making a statutory secure accommodation order or for the High Court to exercise its inherent jurisdiction to authorise a local authority to restrict a young person's liberty. This was because:
- (i) The consent, or otherwise, of the young person is not a relevant factor in the statutory scheme. Section 25 and Article 5 ECHR involves different processes. The former authorises the local authority to keep the child in secure accommodation. It means the person in charge of that accommodation may restrict the child’s liberty.
- (ii) There is no domestic authority to the effect that it is necessary to find an absence of valid consent before the court may authorise a local authority to restrict the liberty of a young person. The inherent jurisdiction order does not itself deprive liberty; it merely authorises the same.
- (iii) To hold otherwise would be to confuse the distinct temporal perspectives of Art 5 and an application for authorisation. Whether a person is deprived in breach of Article 5 is often a retrospective evaluation of their current and past circumstances. Consent in that contest is therefore likely to be an important element: “one cannot normally be said to be deprived of liberty when one has freely agreed to the relevant regime” (para 78). Whereas the court’s role under the statutory and inherent jurisdiction processes is normally prospective.
- (iv) It would mistake the purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation. Neither the local authority nor a child/young person can authorise what Parliament has decided only the court can authorise.
So, in summary:
81. Drawing these matters together, once it is seen that the court's power under s 25 / s 119 is not dependent upon any question of consent, the difficulties that arose in this case, as it was presented to the judge and, initially, to this court, disappear. The fact that any consent may or may not be 'valid' or 'enduring' on the day the order is sought, or at any subsequent point, or that a 'valid' consent is later withdrawn, is irrelevant to the scope of the court's powers, whether they are exercised under statute or under the inherent jurisdiction of the High Court. The existence or absence of consent may be relevant to whether the circumstances will or will not amount to a deprivation of liberty under Art 5. But that assessment is independent of the decision that the court must make when faced with an application for an order authorising placement in secure accommodation, registered or otherwise.
This decision is a significant one for children services. And it will be relevant to In the matter of D (A Child) which was heard in the Supreme Court on 3-4 October 2018. The issue there was whether the confinement of D, a young person aged 16, who lacked capacity or competence to make decisions about his residence and care, amounted to a deprivation of his liberty in circumstances where his parents were consenting to the confinement. The role of consent also lies at the core of the appeal in conditional discharge case of MM v Secretary of State for Justice, heard on 26 July 2018. Judgments in both cases are awaited.
It is no doubt true that a person can be deprived of liberty even where they are consenting to their confinement. An obvious example is the Mental Health Act 1983 where risk may warrant detention even where the person agrees to be confined. To that end, the “lack of valid consent” requirement of Storck could be characterised as a sufficient, but not a conclusive, element of the deprivation of liberty equation, at least within a framework which expressly provides for the exercise of coercive state power.
The judgment raises many interesting issues. For example, the emphasis on the permissive nature of court orders in the present context does resonate with DoLS authorisations and Court of Protection orders in the sense that they permit – but do not demand – a deprivation of liberty. And that must be right; there must be room to adjust the intensity of the care arrangements on the ground.
The court’s distinction between prospective and retrospective approaches to deprivations of liberty is also of interest. There may however be an important jurisdictional distinction here. The powers of the court under the Children Act and inherent jurisdiction are not dependent upon the child or young person’s consent. Whereas the Court of Protection’s jurisdiction only exists if the person lacks the capacity to make the relevant decisions: in other words, is unable to give any relevant consent.Even though there is reference in case law to the prospective or “forward looking focus of the Court of Protection”, consent – and therefore the capacity to consent – is time specific. Authorisations to deprive liberty in this jurisdiction must be contingent upon a lack of capacity to consent as it is important that the permissive nature of DoLS and judicial authorisations are not used inappropriately where people are able to make their own decisions.