CM15C05383
In the Family Court at Chelmsford
13th May 2016

Before 
HHJ Lynn Roberts sitting as a Deputy High Court Judge

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Re Daniel X 

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Judgment
1.  This is the final hearing of the care proceedings brought by Thurrock Borough Council in relation to Daniel X,   a boy of 10.   (This is not his real name.)  Thurrock Borough Council  who bring the proceedings is represented by Mr O'Brien    The other parties are Daniel’s mother, Ms Yasmin represented by Mr Venables,         his father   Mr X represented by Mr Cummings and Daniel by his Guardian  Faith Senior and represented by Miss Hume .

2.  It is also the final hearing of the application by Thurrock Borough Council for me to authorise them to deprive Daniel of his liberty by accommodating him in Y Home.

3.  I have read a bundle of documents prepared for the care proceedings which include assessments of Daniel by Dr Martinez ,  and of his mother and his grandmother’s ability to care for him.   I have read detailed skeleton arguments from each advocate concerning the Deprivation of Liberty (DOL) issue.

4.  I have heard submissions from each advocate on the DOL issue as all other matters have been agreed.

The Background
5.  Daniel is a child who presents with an autistic disorder at the severe end of the spectrum according to Dr Martinez .  He also has a severe learning disability.   He lived at home with his parents and sister Sarah ( not her real name) who is 4 years or so younger than him and who does not have similar difficulties until the summer of 2014 when he became accommodated.   Since then he has lived and thrived in a unit known as Y Home and has attended the Z School.   He became accommodated after Daniel and Sarah were left at home alone (then aged 8 and 3) resulting in Daniel wandering the streets with no shoes or trousers on.     There had been other incidents and other causes to fear that Daniel’s needs were not being met since at least 2010 when the family lived in Hackney.    Assessments were carried out and the authority were satisfied that Daniel’s parents were able to care for Sarah.

6.  The Local Authority commenced care proceedings for Daniel only in November 2015 after Daniel had been accommodated for a considerable period of time,  in part I presume because it became clear that the Local Authority saw the future for Daniel differently from how his parents saw it.    The proceedings were taking place before the magistrates until last month.    It was then thought necessary to transfer the case to me for one particular reason.   The Local Authority care plan is for Daniel to remain living in Y Home.      Technically this involves restricting Daniel’s liberty to leave as he would be placed there by the state and has not got the option to depart.       The Local Authority therefore considered it prudent for the High Court to consider whether there should be an order in relation to the Deprivation of Daniel’s Liberty.

7.  The position of the Local Authority is that Daniel should remain in Y Home with regular and frequent contact to his family.     They rely on the assessments which are unanimous that Daniel needs to be cared for within a unit such as Y Home and that his needs are too great to be cared for within a family home,  and that in any event,  his parents whilst caring well for Sarah are not able to meet Daniel’s needs.

8.  Daniel’s mother has not attended today and I am told she has an emergency relating to her eye.     Her instructions up to this morning had been to oppose the application for a Care order but she had no complaint about the care Daniel was receiving at Y Home.    Her position today changed and she is not opposing the making of a Care order and wishes Daniel to remain living at Y Home.

9.  Daniel’s father reluctantly agrees that it would not be in Daniel’s interests for him to return home and he agrees that there should be a Care order     He is very pleased with the care Daniel is receiving.    

10.  The Guardian agrees with the Local Authority plan.   She raised issues with regard to contact and a preamble has been agreed which will mean that Daniel’s mother can receive assistance from Y Home better to meet Daniel’s needs in contact, and if that takes place,  contact may well take place in the community and in the family home.    Daniel’s father may join that contact. 
	
The Care Proceedings

11.  All parties are now in agreement about contact.

12. There is an agreed threshold document which I approve.  The requirements of section 31 of the Children Act are therefore met and I can go on to decide what sort of order, if any,  I should make.

 13.  I am satisfied that Daniel’s needs are of such a nature that he needs to be cared for within a specialised unit with expert staff looking after him,   protecting him and enabling him to progress and reach his potential.      The reports I have read show that Daniel is making great progress in Y Home and that he is happy there and sees it as his home.

14.  Daniel’s parents do not oppose the making of a Care order which will allow Daniel to remain at Y Home but they have not been of this view until recently.     I find that an order is necessary in this case to meet Daniel’s needs as it is his welfare which is my paramount concern pursuant to s1 of the Children Act 1989,  and I am satisfied that Daniel’s needs are being well met at Y Home and that no other arrangement will meet his needs at this time.    There is a need for certainty to achieve stability for Daniel.

15.  The contact arrangements which are in place,  and the plans to increase and improve the quality of contact are the right ones for Daniel .

16.  I make a Care order .

Deprivation of Liberty	
17.  The outstanding issue is that of Daniel’s liberty,   and there is a great deal of consensus on this point too.      However,   it has been agreed at the bar that it would be helpful if I set out the position in law and how I consider the law applies to Daniel .     

18.  I am dealing with this issue as a section 9 judge.   I have been authorised to deal with this case and others relating to children and the deprivation of their liberty by the FDLJ for this area,  Mr Justice Newton.

19.  Daniel is living in Y Home where he is thriving.   It is a specialist children’s home and the other children who live there have similar difficulties to those which Daniel has.
Not only does Daniel have to deal with being on the autistic spectrum and having severe learning difficulties,  but he also has associated behaviours which put him and others in danger.   In order to keep Daniel safe he needs to be constantly supervised and Y Home has physical restrictions to prevent him leaving the premises and indeed, from moving freely around in the premises.

20.  From the reports I have read,   in particular that of Dr Martinez ,  but from all the evidence,   I am satisfied that these restrictions and the placement are necessary to promote Daniel’s welfare and to protect him from harm.     It is therefore necessary to look at the legal position.     At the hearing prior to the final hearing it was acknowledged by all that if Daniel was to remain at Y Home there would need to be a declaration authorising the Local Authority to deprive Daniel of his liberty as far as was necessary to keep him there.   It is to be a permissive order, in other words,   the Local Authority would be authorised to deprive Daniel of his liberty but do not need to do so if it is not in their view necessary.    I made an order asking for each party’s advocate to file skeleton arguments on the issue of length,  review and renewal of a deprivation of liberty order in the event that such an order is made by the court.    I am most grateful for the thoughtful and erudite papers I have received.

21.  The first issue is whether I should grant the Local Authority leave to invoke the inherent jurisdiction.    Nobody sought to argue that I should not but for the avoidance of doubt I shall briefly deal with that point.   Mr Justice Keehan has considered this point in AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam):   he sets out therein why section 25 of the Children Act 1989 is not an appropriate way of dealing with such cases and I agree.    Mr Venables has asked me to express a view,  but does not wish to pursue the point in this case,   as to what is said by Keehan J at paragraph 32.     In that paragraph Keehan J sets out that section 25 of the Children Act is an inappropriate mechanism not only because of its punitive quality but also because the children’s home in that case,  as in this case,   is not registered under the relevant regulation (Regulation 3 of the Children’s Secure Accommodation Regulations 1991) which means that an order made under section 25 to allow the child to be accommodated in secure accommodation would mean that the child would have to move to an approved establishment.

22.  Mr Venables submits that the alternative way of dealing with this situation,    to use the inherent jurisdiction,   should not be used as a way of avoiding the regulations attached to section 25  which are there to protect children who are kept in secure accommodation.

23.  Mr Venables also submits that there is a need for a statutory regime  to deal with children in this position.     I agree.    But that is likely to take time and in the meantime it seems to me right to deal with this and other future cases under the inherent jurisdiction of the High Court.     I do not see this as avoiding the regulations as the regulations to my mind are not relevant;     they are relevant to institutions which are set up for the purpose of depriving liberty which Y Home is not.

24.  Pursuant to section 100 of the Children Act 1989 I grant leave as otherwise the Local Authority would not be able to achieve the result which all concerned with Daniel’s welfare consider necessary for his welfare and protection and to prevent him suffering significant harm.

25.  I now turn to the issues of the length of any order I make and how it should be reviewed or possibly renewed.       The position of the parties at the start of the hearing was that the Local Authority ,   father and Guardian all considered it appropriate for the order to be long term,   either of indefinite length but subject to internal review,  or for the duration of his minority,  subject to internal review by the Local Authority and open to any party to apply to the court for earlier discharge.    Having read Mr Venables’ powerful position statement,   the view of all the advocates was that the order should be for no longer than a year and subject to external review.

26.  In his position statement Mr Venables discusses Article 5 of the ECHR and I agree with him that Daniel’s detention is justified on the basis that he is of unsound mind which falls within Article 5 1(e).     The article was considered in HL v UK (2000) 40 EHRR 32 at [98] and it is clear from that judgment and the earlier case of  Winterwerp Netherlands (1979-80) 2 EHRR 387 that the persistence of the condition which has lead to the person’s detention and the lawfulness generally of the detention  should be reviewed at reasonable intervals.     As Mr Venables helpfully sets out,    in our own courts the President,  first as a High Court Judge and then as a Member of the Court of Appeal,  has dealt with these principles in Re PS (Incapacitated or Vulnerable Adult) [2007] 2FLR 1083 and then in Re BJ (Incapacitated Adult) [2010] 1 FLR 1373:   in the first he says :
“Any order authorising detention must contain provision for an adequate review at reasonable intervals,  in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement” and in the case of Re BJ he said: “Regular reviews by the court are not merely desirable, not merely a matter of good practice;  they go,  as both the Strasbourg jurisprudence and the domestic case-law make clear,  to the very legality of what is being done.”

27.  Mr Venables has also referred me to the useful case of Re C (Detention: Medical Treatment) [1997] 2 FLR 180 in which the President’s predecessor was the judge when he was Wall J .   Interestingly the current President acted in that case as amicus curiae.      Seven considerations arose from that case to be borne in mind by the court when deciding whether and how it should make an order such as the one I am concerned about,  although that case concerned detention for the purposes of medical treatment.    One of those is that the order should specify the maximum period of the detention being authorised,  and if thought appropriate,  a review date by the court.  

28.  Nobody before me now argues that it is sufficient for the Local Authority to review these matters by way of the LAC review process and by the involvement of the IRO.     The independence which is necessary for such a review to comply with the requirements which I have outlined would not be there .    Keehan J similarly did not think that would be sufficient in the case of Re AB.     

29.  I have considered the case known as Cheshire West in the Supreme Court Surrey County Council v P and others; Cheshire West and Chester council v P and another [2014] UKSC 19 and I agree with Mr Venables’ submission that it was conceded by the Local Authorities in that case that the Court of Protection cannot authorise a deprivation of liberty for an indefinite period for an individual deprived of his liberty otherwise than in a hospital or registered care home.      That is the context of what Baroness Hale says in paragraph 57 when she says that people so detained “need a periodic independent  check on whether the arrangements made for them are in their best interests.   Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the deprivation of liberty safeguards….”

30.  The regime by which the interests of those deprived of their liberty pursuant to the Mental Capacity Act 2005 is complex, with a great deal of independent input and subject to review by the court.

31.  Mr Venables says in his position statement,  powerfully in my view:

“As the power to initiate detention is derived from the powers of the court,   only the court can have the power to review that detention.   It is not a power that can be delegated to a Local Authority .”

32.  I agree.    Internal review is not sufficient;   I do not think that I should make a long order with regular reviews as I consider that the burden should be on the Local Authority to apply back to the court on an application for renewal of the order if appropriate and to prove their case again,  albeit on paper, if unopposed and considered appropriate.  

33.  In discussions there was a consensus for the way forward which I agree with.      I shall make a declaration that it is lawful for Thurrock Borough Council to deprive Daniel of his liberty by accommodating him at Y Home for one year from 12th May 2016 and that this deprivation of liberty is a necessary and proportionate measure for the safeguarding of Daniel’s welfare.

34.  It is agreed that 35 days before the expiry of this order Thurrock Borough Council,  if it seeks to renew the order,  will lodge an application to that effect and include medical evidence to confirm that Daniel still requires that type of accommodation;   the evidence lodged will include evidence from the social worker about Daniel’s up to date circumstances,  possibly a school report,  and a report from the IRO that Y Home is still suitable for Daniel .   The parents would then have the opportunity to respond within 14 days of being served.      If the parents agree to the order being renewed or do not reply,  the court will consider the application on paper.     The Court has the option of appointing a Guardian for Daniel under rule 16.4 of the FPR if thought necessary but I do not think it necessary for a Guardian to be appointed on issue of the application.    The Court may make the declaration sought on paper or may list the application for a hearing.

36.  I consider this a very sensible way forward,   proportionate and not onerous to the local authority,  but providing Daniel with the safeguards which he,  as a very vulnerable child,  requires.

LYNN ROBERTS
Circuit Judge sitting as a deputy High Court Judge
Designated Family Judge for Essex and Suffolk
13th May 2016.