Deprivation of liberty and care proceedings
‘ Lennox House is a large detached house in a rural setting in Scotland, which was originally a working farm. It is on the outskirts of a village, sitting high in its own grounds and is accessed via a winding drive over a large grassed area with steep banks leading up from the road…. By reason of its rural location, most of the outings taken by young people away from Lennox House have to take place in the company of a member of staff, principally to provide transport….’
Thus did Cobb J describe the therapeutic accommodation where the 14 year-old RD was living in Re RD (Deprivation or Restriction of Liberty)  EWFC 47 (judgment, 28 June 2018). She was the subject of care proceedings. She had been in Lennox House since September 2017 after a damaged and disrupted childhood. She was not to be Gillick-competent to make decisions about her placement. Cobb J must decide whether the regime at Lennox was such as to deprive her of her liberty within the meaning of European Convention 1950’ Art 5.
The principle legal sources of the judge’s review of RD’s position (summarised by him at -) were:
- Art 5 as defined by Cobb J: ‘the right "to liberty and security of person", with its complementary right not to be "deprived of … liberty"’;
- United Nations Convention on the Rights of the Child 1989 Art 37: that no child should be deprived of liberty; and if deprived of liberty, that the child shall be treated with humanity and respect;
- Cheshire West and Chester Council v P  UKSC 19,  AC 896;
- Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96; and
- Re A-F (Children)  EWHC 138 (Fam), Sir James Munby P.
Storck: confinement to a specific place for an appreciable time
Storck identified that there were three elements – all of which must be present – for deprivation of liberty under Art 5:
- The objective element of confinement to a certain place for an appreciable period of time;
- A lack of valid subjective consent to the confinement in question; and
- Confinement by, or imputable to, the state.
Of (2): RD was in interim care. She could not consent and no-one could validly on her behalf. Accommodation of RD was ‘imputable’ to the state (3), therefore (2) and (3) both applied to her.
So what of (1)? Cobb J treated this as ‘the acid test’, the phrase – as he explained – used at in Cheshire West (at , and ) of whether a person is under the ‘complete supervision and control of those caring for her, and is not free to leave the place where she lives’ (at ). He was able to pare this test down further. This was ‘the core issue’: was RD ‘under complete or constant supervision and control’, which he took to mean something akin to ‘total’, ‘unremitting’ or ‘unqualified’ (at ). At  he identified a series of passages from Cheshire West as being of relevance to RD quoted by him at  and including:
- ‘We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty’ ();
- ‘What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities’ (); and
- ‘the person's compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant’ ().
The ‘acid test’ is subjective to the individual concerned; but in the case of children, particular considerations apply (Re A-F at (ii) and (iii)). Children nowadays live a regulated and controlled life than a generation or two earlier, as Sir James Munby P explained in A-F at . And, as Lord Kerr commented in Cheshire West (at ): ‘All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances.’
Children and ‘some level of constraint’
‘There are restrictions on RD’s movement, for sure’ said Cobb J:
‘… She does not enjoy the freedoms to wander in to a town as a 14½ year old young person may have the opportunity to do if living in an urban area. This restriction at least in part (perhaps a significant part) arises because of the geographic location of Lennox House – its distance from the local town and village, its distance from school…’
However, he went on, this is not a function of any ‘complete control or supervision’ of the State. He therefore held:
‘ All children are, or should be, as I have discussed subject to some level of restraint, adjusted to their degree of maturity; so too is RD. It is against that background that I assess RD's situation. Having reviewed all the circumstances, and for the reasons which I have set out above, I have reached the conclusion, on a fine balance, that the regime at Lennox House does not possess the ‘degree or intensity’ of complete control or supervision of RD which justifies the description of 'deprivation' of her liberty…..’
His conclusion (at ) was therefore that he was ‘satisfied that the placement of RD at Lennox House is meeting her needs; the distance from home is regrettable but the benefits of [Lennox House] outweigh the practical difficulties which distance creates.’ The result was that Cobb J could proceed with the Children Act 1989, Part 4 (care) proceedings in England, not to transfer the case for consideration where RD lived (in Scotland; and as might have been necessary in Northumberland County Council v S (Mother) & Ors  EWHC 2432 (Fam), Cobb J).