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When you have deprived someone of their liberty, either you have put someone in jail or you have just performed a kidnapping. Among adults this is not something to take lightly, but among children it is something our society takes for granted. Many figures of authority can force young people to stay – parents to their children to stay home, teachers to their students to stay at school, and police officers usually when there is an investigation.
But Deprivation of Liberty in legal terms goes a bit further – it means you are locked in a room or ward, and cannot leave or go anywhere without permission or continuous supervision.
Formally, the analysis if a state of deprivation of liberty exists was set out in Storck v Germany (2005) 43 EHRR 96 (paragraphs 74, 89), and paraphrased by Lady Hale in Chesire West as:
- The objective component of confinement in a particular restricted place for a not negligible length of time,
- The subjective component of a lack of consent, and
- The attribution of responsibility to the state.
The comparison to prison life is very apt.
All citizens have rights not to have their liberties curtailed and minors specially are meant to have greater protections. Even the power of their parents and guardians over them need to have a limit. Minors cannot be deprived of their liberty except under highly specific circumstances. They cannot be deprived of their liberty except with a court order.
Not their parents, not even the government, may keep them in detention for long without their consent. Deprivation of Liberty Orders are only granted if an individual in question lacks the mental capacity to give consent to necessary restrictions for their own well-being.
What Isn’t a Lawful Deprivation of Liberty?
As previously noted, there fundamental question is “Has consent been given to carry out this action?”
The authority extended to parents and caretakers all boils down to the UN Convention on the Rights of the Child (UNCRC), which the UK is signatory to. By legal definition, a child is someone who has not yet reached the age of eighteen (18). Young person may be used to refer to a person 16 or 17 years old. According to Article 7:
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
- A child being told to stay in their room is not being deprived of their liberty. Grounding as a form of ‘house arrest’ in discipline for their own misdeeds is not cruel or inhumane, as they are still allowed to move about and all their needs met, and their rights to leave the house for their regular education and health concerns are maintained.
- When they are prevented from leaving their home or interacting with others for arbitrary reasons, or this has gone on for too long, that crosses the line into abuse. Parents may forbid their children for their own safety, but ultimately may not keep them imprisoned.
- Locking children home alone when they are not old enough to take care of themselves is neglect.
- When children run away, parents and guardians can seek to have them returned because parents take assumption of responsibility over their children.
- The exercise of parental responsibility (in respect to a child under 16) may amount to valid consent.
- Being placed in foster care, a children’s home or residential special school for someone lacking the mental capacity to consent does not in itself constitute a deprivation of liberty. However, the combined effect of several specific measures may become one.
- Certain restrictions – like where the child may reside, a restriction on developing sexual relations, the locking and bolting of doors and properties for security reasons or to prevent children from leaving, restricted access to areas like kitchens, shops, and private bedrooms, restrictions on access for personal belongings that may cause harm, restrictions on the excessive pursuance of favorite activities, and disciplinary penalties for poor behavior – these and other reasonable precautions are usually not considered in the test if a situation of deprivation of liberty exists.
- Constraints may be age-specific. What may be appropriate to a child of 5 years, for example, may only be minimally restricting to someone aged 15. Vice versa, curtailing freedom for their own safety appropriate to a very young child becomes unacceptably restrictive or harming to those older.
- Even parents cannot give simply consent to the deprivation of liberty of their children. Hospitals and care trusts must apply to the High Court for approval of these restrictions. Consenting to their confinement in attendance of other medical needs an argument towards this not amounting to a deprivation of liberty under the Conventions on Human Rights.
- It is unlawful when the person or their family or friends are not involved in the authorization process for their confinement.
- It probably should be rectified the minor or their family/friends are not satisfied with their care, or it is excessively restrictive against perceived risks.
- It is very unlawful when they are not informed or prevented about how they may challenge or complain about their care.
When Might Deprivation of Liberty be Justifiable?
There are two main scenarios in which orders for deprivation of liberty for minors are granted.
The first and most common, for health and safety reasons. When it is important to their welfare for children to be confined, when having them out without supervision makes them an unacceptable danger to themselves and others, deprivation of their liberty is justifiable.
Let us take several scenarios set out by The Law Society:
David is 16 years old and has Smith Magenis syndrome. His condition is characterised by self-injurious and destructive behaviour, aggression, hyperactivity, and severe sleep disturbances including frequent and prolonged night waking. He also destroys furniture, eats copious amounts of, sometimes uncooked, food.
In accordance with the assessments and care plan prepared by the local authority, his foster parents lock him in his bedroom from 7pm until 7am every night to keep David safe. Doors and windows around the house are also kept locked at all times with keys hidden. During the day he receives intensive support from his foster parents with all aspects of daily living, and at least one of them is with him at all times.
He is deprived of liberty but justifiably so because is:
- David is regularly locked in his room for 12 hours out of every 24 hours each day, and all doors and windows around the house are kept locked.
- David is always under supervision and accompanied by a guardian at all times for his own protection.
- A care plan suited to his needs was measured and prepared and carried out with the approval of local authority.
Joanna, aged 16, has autism, severe learning disability and epilepsy, and aggressive and self-harming behaviours. She resides in a children’s home from Monday to Friday, which her parents can visit at any time, and spends the weekends at her parents’ home. During term time she attends school.
Both at school and in the children’s home she is supervised most of the daytime to prevent her harming herself or others. She compliantly takes her prescribed medicines. She is not physically restrained other than on a few occasions to prevent her attacking others. Her behaviour has led to minor sanctions being imposed on a few occasions, such as not allowing her to eat a takeaway meal or stopping her listening to music when in a car. The front door to the children’s home is not locked but, were she to run out of it, she would be brought back.
She is only potentially deprived of liberty because:
- A similar situation has been prior judged not to be a deprivation of liberty in case law.
- She is not normally physically restrained or locked away except when in protection of others.
- But while this is a reasonable level of care and restraint for young children with special needs, as she gets older these restrictions become less appropriate.
A third situation in a resident special school:
John, aged 17, has been resident in a school for some years. He has autism and severe learning disability with extremely challenging behaviour. His behaviour is managed in large part by the use of a padded blue room in which he was secluded when he exhibited challenging behaviour.
He has developed a number of behaviours that are particularly prevalent when in the ‘blue room’ including defecating, smearing and eating his own urine and faeces, and stripping naked. He is prevented from leaving the blue room for reasons of aggression and nakedness. The blue room is also used as a room to which David had been encouraged to withdraw as a safe place.
He is visibly deprived of liberty, and it was sent up to the courts if this confinement is a lawful way to manage his behavior.
- It was judged that in this particular instance the use of the blue room was permissible but other similar situations it is unlawful without judicial authorization.
- The blue room is not to be used as part of a punishment or therapeutic or behavior modification program, but only when proportionate and necessary.
- That it is in his best interests for his dignity to be protected by being clothed when the presence of others, but restrictions on his own choice are to be minimized.
- Hence, he must not be taken to the blue room whenever he feels clothes are restrictive or declines to get dressed, but encouraged to be in areas of his own accommodation where nakedness is acceptable. Seclusion in the blue room should not be considered in the vein of an amateur attempt at behavior modification or the encouragement of a psychological dependence.
- Restraint and seclusion should only be used to manage violent behavior
- as an intervention of last resort
- never as a punishment
- consideration must be given to the individual needs of each child as to the most appropriate response
When it comes to children and young persons with physical disabilities, they all have the rights to special care, education and training designed to help them to achieve the greatest possible self-reliance and to lead a full, active life in society. They also have a right to education that assists the development of their personality, talents, and mental physical abilities to their fullest potential.
They have much the same rights under the Equality Act 2010 to be able to access education, housing, goods and services and public facilities. At no point should their physical disability present a deprivation of their liberty or inability to participate in society.
Children Withdrawing Consent to be Confined
The second situation when deprivation of liberty may be ordered is when the child in question is not physically or challenged but actively disobedient or engaging in criminal activities. The latter issue is outside the boundaries of this article, and is the province of the juvenile justice system.
Parents are perhaps more concerned about how to deal with an out-of-control child. Foster parents are more unsure about what allowable remedy they have under the law. Some youths also have ideas about what they might do if they withdraw consent to be confined.
Let us take a look at an example case Re C (A Child)  EWHC 3473 (Fam).
C is 15 years old and subject to a care order made in 2002. His mother D lacks capacity and was represented by the OS. C’s increasingly difficult behaviours led to foster placement breakdown and in 2015 so he was placed in a specialist residential unit (not a registered secure unit) where he has been for 18 months. The unit had high levels of supervision and a strict regime.
The regime under which C lives at the residential unit may be summarised as follows:
- staff know the whereabouts of C at all times;
- he is never left alone in the unit;
- he is never left alone with other residents;
- he is subject to 1:1 staffing including during breaks at school. C is subject to constant observations by staff and has no free time when he is not observed;
- the external doors of the unit are locked at night;
- the bedroom doors are alarmed at night to ensure privacy and to ensure the whereabouts of all residents, including C, are known. C is not permitted to enter another resident’s bedroom (which restriction applies to all residents);
- internal doors are locked if C’s behaviour necessitates the same;
- C cannot leave the unit unsupervised and cannot leave unaccompanied without permission;
- he is monitored at all activities outside of the unit and is accompanied on all recreational and social events;
- he is not permitted any internet access and the use of his mobile telephone is restricted to call only four telephone numbers; and
- C cannot travel alone on public transport.
Early on in his placement there was an incident in July 2015 when C barricaded himself into his room and threatened to self-harm. The police were called and the situation was resolved. There has not been a repeat of such behaviour.
An issue upon which the local authority and the Official Solicitor placed considerable emphasis are the examples of C either (a) testing the boundaries of the close supervision at the residential unit, (b) resisting or refusing to comply with the restrictions placed upon him, and/or (c) breaching on occasions what may be termed the house rules.
C has stated that ‘I do not believe I should be under any additional restrictions which do not apply to the other boys at the Home’. He commented that ‘Court was ages away and he couldn’t wait to get freedom. He said that then he’d “f*** off out of this house and go out and none of you would know where I was” in a defiant tone.’
C displayed a pattern of refusing to comply with the restrictions in place, such as:
- Using the internet (when forbidden access in the home)
- Climbing out of his bedroom window
- Stealing a cable from school to use to access the internet and Facebook without staff permission
- Sneaking out of the house at night, including to visit friends.
- Record by Ms Sensicle dated 9.9.16 noting that [C] ‘sprinted off’out of her sight to speak to peers without supervision.
- Planning to ‘abscond’ to see his girlfriend without supervision.
On the particular facts of the case, C was deprived of his liberty – the restrictions in the unit amounted to a deprivation of his liberty. C was confined, supervised and controlled 24 hours a day.
C threatened to withdraw consent. Therefore the Local Authority had to bring proceedings under their jurisdiction pursuant to lawful deprivation of liberty and restrictions that were in his best interests and proportionate.
The court held that inherent jurisdiction could be used to authorize the deprivation of liberty of a child and that such a use would be Article 5 of the European Convention on Human Rights, which goes:
Article 5 – Right to liberty and security
- Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
- the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
- the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.
C was of sound mind and could give consent to his deprivation of liberty, but his behavior over the past 19 months could also be considered as a continued rejection of this authority. Can he actually withdraw consent to his confinement?
Is it unjust that he be subjected to rules singling him out against his peers?
The court held that C was subject to the same rules as other residents of N House, and no one other residents were subject of an order for the deprivation of their liberty. Most of the the rules he was subject to were also applicable to other residents, such never being left alone in the unit or with other residents without nearby supervision, unit and bedrooms locked at night, cannot leave without permission or accompaniment, or to travel alone on public transport.
C was only under special observation to social and recreational events and restricted from internet access, and was monitored constantly. It was understood that the circumstances under which C lived was very demanding for a 15-year old, and under such invasive restrictions it was unsurprising that he would occasionally act out.
However, it was clear that C gave consent for his living circumstances and continues to do so in recognition that the restrictions were necessary to protect him and others around him.
- He could have chosen to ‘vote with his feet’ but has chosen not to do so.
- He has always returned to the unit of his own volition;
- He has never had to be returned by the police or under coercion; and
- He has never left the unit for a period of time that could amount to absconding from the unit.
C had and will likely continue to seek to push the boundaries of the restrictions placed upon him, he has and will to seek to complain about these restrictions, and may well continue to occasionally breach house rules.
However he also had clearly benefited from his placement there which he had recognized.
Were he not to cooperate or withdraw his consent to his placement, it would therefore become inevitable that the local authority would take action and further apply to the court to secure his compliance.
In repeat: The exercise of parental responsibility may amount to consent. As long as restrictions are applied proportionally and not arbitrarily, the liberty of young people can be curtailed for their own benefit, though they might chafe unduly under their restrictions.
More Extreme Cases
But such an example could be considered to be a mild, if perhaps incredibly common case of youthful disobedience. What if the child in question is disruptive and violent?
A person with Parental Responsibility for a child has the legal duty to protect, house, and provide for them – no matter what. The appropriate levels of discipline or their lack of efficacy may leave them feeling helpless and bewildered, the balance of power shifting from parent to child.
The University of Oxford first made a study on APVA in between 2010 and 2013, in which parents describe an environment in which they live in fear of their child and or curtail their own behavior in order to avoid conflict. APVA is a case of domestic abuse and violence and appropriate regulations apply. Social workers may be asked to perform an intervention even at times when the boundary between abuser and victim may be unclear.
In worst case scenario, one might require an Antisocial Behavior Order. A boy aged 10, Ryan Wilkinson, is the youngest to ever be the recipient of an ASBO. This is valid mainly in England and Wales, in Scotland such problems are referred to Children’s Hearings Act 2011.
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