In short, if a local authority needs to care for an under 16year old in a way that deprives them of their liberty, the local authority (even if they have a care order) can't authorise the deprivation themselves.
A deprivation of liberty will occur when the care includes 'continuous supervision and control,' and the child is 'not free to leave'. The decision making needs to focus on how differently one child needs to be cared for compared to another of a similar age.
If the child is in a mental health unit, the Mental Health Act could be used. In a secure children's home, s25 of the Children's Act is applicable. But if the child is cared for anywhere else ( a care home or school for example) no legal framework currently exists to authorise the deprivation, so the only option councils have is to go to the High Court and rely on that Court's 'Inherent Jurisdiction' to act in the absence of other frameworks.
Daniel X was only 10 yrs old, and had severe autism. A previous case involved a 15year old who had complex needs. That first case was important because the judge decided that although he was placed in a specialist unit under s20 ( so the local authority were involved in providing his care), because his parents were involved, supportive and able to actively advocate for him, they were also able to provide the authority necessary to detain him, at least until he was 16yrs old when the case had to be referred to the Court of Protection (who duly authorised his detention)
In Daniel X's case, he was subject to care proceedings, because of concerns that his parents were unable to care for him. The case was heard by a family court judge who was also a high court judge, so that she was able to make a decision about whether Daniel was deprived of his liberty, and if yes how it could be authorised. She decided he was deprived of his liberty (exactly how wasn't clearly stated) and in the absence of any other legal mechanism, the inherent Jurisdiction of the High Court was used to authorise the DoL. The judge also directed the local authority to reapply to the court on a yearly basis, to ensure he detention was reviewed and continued to be in Daniel's best interests.
Implications for local authorities, special schools and care providers:-
The starting point should alway be why the restrictions on the child are necessary, and whether they are proportionate to the risk the child or others might face if they were not there. The restrictions (being under continuous supervision, and control, and not being free to leave) should not be seen as inherently negative - in most cases they will be necessary and appropriate. Many children with complex disabilities will fall into this camp - but as long as parents are actively and appropriately involved in their child's care, and able to provide effective challenge on behalf of their child, they can authorise the deprivation.
For those on care orders, or where a child is placed using s20 but where there is a level of ongoing dispute or doubts about the ability of parents to act in the child's best interests, neither the parents or local authority can provide such authority, and an application to the high court may be necessary.
In the future, it's likely that family courts will consider these issues when care proceeding are under way, and in time the law will no doubt be changed. However, for the current cohort of 'looked after children', social workers and local authorities need to be mindful of these judgements, review existing cases, and consider which ones need additional authority.
Social Worker, AMHP, Manager, Author
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