Hertfordshire County Council v AK and another  EWHC 139 (Fam)
Deprivation of liberty orders should only be made if a child’s current circumstances justify the making of one. They should not be made on a contingent or anticipatory basis for such unspecified time when a child’s circumstances deteriorate.
AK, a 16-year-old boy, had been accommodated in foster care under s20 of the Children Act 1989 since 25 November 2017. AK had a history of absconding, and from May 2018 was regularly reported missing. In the same month, AK was detained under s136 of the Mental Health Act 1983 after presenting with suicidal ideation. He was later discharged, having been assessed as not having acute mental health issues, however was moved to a residential home (X) due to concerns about his safety. At no point was this placement regulated by a Deprivation of Liberty (DOL) order, notwithstanding the continuation of AK’s absconding, suicidal ideation, self-harming, low mood, criminal activity and hospital admissions. AK had also been section under s2 of the Mental Health Act 1983 during his time at X.
AK was admitted to hospital on 6 November 2019 as a result of a self-inflicted wound on his leg becoming infected and for which he underwent surgery for on two occasions; those being on 7 November 2019 and 27 November 2019 respectively. He was later discharged in December 2019, at which point he was placed at a semi-independent, solo placement (Y).
During AK’s time at Y there were no further incidents of self-harming and AK had been taking his medication without objection. AK’s care regime at Y, which was confirmed to be similar to that also at X, was as follows:
i. The internal and external doors remained unlocked and AK was able to exit the property;
ii. AK had flexible visits with his mother at her home up to 3 times per week. AK was dropped off and
picked up by Y’s staff at AK’s request;
iii. AK was subject to 2:1 supervision;
iv. AK had unlimited access to his mobile phone, the internet and his X-Box;
v. AK was checked on every 15 minutes;
vi. Neither AK’s room nor person were subject to searches; and
vii. AK had a planned daily schedule and was rewarded for compliance.
Due to the expiration of the temporary OFSTED registration under which AK had been placed, the Y placement was unable to continue beyond January 2020. The Local Authority therefore sought an alternative semi-independent placement (Z) in the alternative. Z considered they could meet AK’s needs under a similar regime to that at Y. However, Z were clear that they would not have AK under a DOL order.
The Local Authority applied for a DOL order on the basis that the criteria for the making of such an order was met, and that it would be in AK’s best interests for the court to do so, notwithstanding it would frustrate AK’s move to Z. The social worker’s witness statement made clear that the overall plan of the Local Authority was to move AK towards independent living via semi-independent placements.
The Local Authority sought authorisation to implement the restrictions in its plan, which it considered constituted a deprivation of liberty for the purposes of Article 5 ECHR, in the event that AK’s behaviour deteriorated:
i. 2:1 supervision of AK at all times;
ii. Searches of AK’s room and person;
iii. AK to have no unsupervised free time;
iv. AK to have no unsupervised access to money, internet (including X-Box) or mobile phone;
v. The doors of AK’s placement to be locked at all times to prevent absconding; and
vi. AK to be checked by waking night staff every 15 minutes.
Dismissing the Local Authority’s application, MacDonald J found as follows:
1. AK was not subject to continuous supervision and control at Y and therefore the regime at Y did not amount
to a deprivation of liberty for the purposes of Article 5 EHCR (at -). The question of whether AK
was restricted to an extent that constitutes a deprivation of liberty was not altered by the existence of
a more restrictive care plan (at ).
2. The High Court may make anticipatory declarations under the inherent jurisdiction in appropriate cases,
but this will be in exceptional circumstances only (at ).
3. In considering whether restrictions constitute a DOL, the court should look at the child’s situation as it
exists at the time of the application (at ).
4. Anticipatory DOL orders risk circumventing the court’s evaluation prior to the granting of such an order by
conferring upon local authorities a discretionary authority to deprive a child of his or her liberty when
the local authority considers it necessary to do so at some unidentified point in the future (at -).
The judge went on to say that his findings did not mean there would never be a case in which a court will grant a DOL order on the basis of a regime that has not yet been implemented. However, in such circumstances the court will need cogent evidence that the proposed regime will be the regime applied under the DOL order. In other words, the provisions of the care plan should be implemented at the granting of the order and not at some unspecified point.
In closing, the Court made clear that its decision did not permit the local authority to implement its proposed care plan without a DOL order, now or in the future. Further, having contended that its proposed regime did constitute a deprivation of liberty, the Local Authority would be required to apply for such an order in the event that AK’s behaviour deteriorated and the Local Authority considered it necessary. The judge was critical of the Local Authority’s application in circumstances where AK’s behaviour had demonstrably improved during his time at Y.
Having found that the restrictions at Y did not amount of a deprivation of liberty, the judge did not consider it necessary to consider whether an Order would be in AK’s best interests and the Local Authority’s application was dismissed.
To read a full case summary, please click here – 2020-04-15 Re N v RK summary