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|A Local Authority v AT and FE (2017) EWHC 2458 (Fam)||Child, no approved secure accommodation available, deprivation of liberty||"Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as secure accommodation orders. Such orders may be made and, indeed, frequently are made by courts, including courts composed of lay magistrates. It is not necessary to apply to the High Court for a secure accommodation order. However, as no approved secure accommodation was available, the local authority required the authorisation of a court for the inevitable deprivation of liberty of the child which would be involved. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction. ... I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. ... In my own experience it is most unusual that a secure accommodation order could be made without the attendance of the child if of sufficient age and if he wished to attend, and without the child being properly legally represented. It is true, as Mr Flood says, that this is not an application for a secure accommodation order, but the analogy is a very close one. Indeed, the only reason why a secure accommodation order is not being applied for is because an approved secure accommodation unit is not available. It seems to me, therefore, that the statutory safeguards within section 25 should not be outflanked or sidestepped simply because a local authority have been forced, due to lack of available resources, to apply for the exercise of the inherent jurisdiction of this court rather than the statutory order. ... I propose to order that the child now be joined as a party to these proceedings and Cafcass must forthwith allocate a guardian to act on his behalf. ... In my view it is very important that ordinarily in these situations, which in plain language involve a child being 'locked up', the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so."|
|Djaba v West London Mental Health NHS Trust (2017) EWCA Civ 436||ECHR and tribunal criteria||"[T]he appeal is concerned with the narrow issue whether the statutory tests within ss. 72, 73 and 145 of the Mental Health Act 1983 require a 'proportionality assessment' to be conducted, pursuant to articles 5 and/or 8 of the European Convention of Human Rights and Fundamental Freedoms and the Human Rights Act 1998, taking into account the conditions of the appellant's detention. ... The position established by these cases is that, where the question whether the detention complies with the European Convention on Human Rights is not expressly within the powers of the tribunals but can be heard in other proceedings, section 3 of the Human Rights Act 1998 does not require the powers of the tribunals to be interpreted by reference to the Convention to give them the powers to consider Convention-compliance as well. The same principle applies here too. In this case, the appellant must apply for judicial review to the Administrative Court if he considers that the conditions of his detention are disproportionate and do not comply with the Convention. That Court is able to carry out a sufficient review on the merits to meet the requirements of the Convention."|
|Djaba v West London Mental Health NHS Trust (2018) MHLO 76 (SC)||ECHR and tribunal criteria||On 15/3/18 the Supreme Court (Lady Hale, Lord Hodge, Lord Lloyd-Jones) refused Jasmin Djaba permission to appeal, giving brief reasons.|
|JD v West London Mental Health NHS Trust (2016) UKUT 496 (AAC)||ECHR and tribunal criteria||"The patient in this case is held in conditions of exclusion and restraint that are exceptional and perhaps unique. He occupies a ‘super seclusion suite’ consisting of a room with a partition that can divide it into two. No one is allowed to enter without the partition in place, except nursing staff wearing personal protective equipment in order to administer his depot injections. He is only allowed out of the suite in physical restraints that restrict his circulation and under escort by a number of members of staff. ... The Secretary of State referred the patient’s case to the First-tier Tribunal on 28 July 2015. The hearing took place on 19 and 20 November 2015; the tribunal’s reasons are dated 23 November 2015. ... What the tribunal did not do was to deal expressly with the human rights argument put by Ms Bretherton on the patient’s behalf. On 7 January 2016, the tribunal gave permission to appeal to the Upper Tribunal identifying as the issue: 'to what extent should the circumstances of the patient’s detention, and any possible breach of the European Convention as a result thereof, have any bearing on the First-tier Tribunal’s exercise of considering sections 72 and 73? Following from that, if the Tribunal is satisfied that the circumstances of a patient’s detention are a breach of the European Convention on Human Rights, how should that be reflected in the decisions that the First-tier Tribunal can lawfully make?'"|