Clarifying Deprivation of Liberty in Child Care Proceedings: Insights from RD Re [2018] EWFC 47

Introduction

The case of RD (Deprivation or Restriction of Liberty), Re ([2018] EWFC 47) was adjudicated by the England and Wales Family Court in 2018. RD, a 14-year-old girl, was the subject of an application for a care order under Part IV of the Children Act 1989. Following a disrupted and damaged early childhood, RD was placed under the interim care of Northumberland County Council and subsequently placed in a residential facility known as Lennox House in Scotland. The central issue in this case revolved around whether the regime at Lennox House constituted a deprivation of RD's liberty under Article 5 of the European Convention on Human Rights (ECHR).

Summary of the Judgment

The judge, Mr. Justice Cobb, examined whether RD's placement at Lennox House amounted to a deprivation of her liberty as defined by Article 5 ECHR. After a thorough analysis, applying the three-part test established in Storck v Germany and guided by precedents like Cheshire West, the court concluded that RD was not deprived of her liberty. The regime at Lennox House, while restrictive to an extent, was deemed necessary and proportionate to meet RD's therapeutic needs. Consequently, the court favored proceeding with the care order, recognizing that the benefits of Lennox House outweighed the practical difficulties arising from its geographic location.

Analysis

Precedents Cited

The judgment extensively referenced key legal precedents to frame its analysis:

Cheshire West and Cheshire Council v P [2014] UKSC 19: Established the "acid test" for deprivation of liberty, focusing on complete supervision and control.
Storck v Germany (2005) 43 EHRR 96: Defined the three elements of deprivation of liberty under Article 5: objective confinement, lack of valid consent, and state imputability.
Re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam): Clarified that local authorities cannot consent to a child’s deprivation of liberty.
Re A-F [2018] EWHC 138 (Fam): Applied the Storck criteria to determine deprivation of liberty in a child care context.

These precedents provided a robust framework for assessing whether RD's situation met the threshold for deprivation of liberty under Article 5 ECHR.

Legal Reasoning

The court applied the three-part Storck test:

Objective Confinement: Whether RD was confined to a specific place for a significant period.
Lack of Valid Consent: RD was deemed incapable of consenting due to her age and circumstances.
State Imputability: Her placement under a care order indicated state responsibility.

The pivotal question was whether RD was under "complete supervision and control" and "free to leave." The court concluded that while RD had restrictions, they did not amount to complete deprivation of liberty. Comparisons were made to typical parental supervision, emphasizing that RD was not indefinitely confined and could make certain movements, similar to a typical 14-year-old under parental care.

Impact

This judgment reinforces the application of the Cheshire West and Storck frameworks in assessing deprivation of liberty within child care settings. It underscores the necessity of balancing a child's therapeutic needs with their liberty rights, providing clarity for future cases involving residential placements. The decision also highlights the court's role in ensuring that restrictions are proportionate and necessary, avoiding arbitrary deprivation of liberty.

Complex Concepts Simplified

Deprivation of Liberty

Under Article 5 ECHR, deprivation of liberty refers to a situation where an individual's freedom to move is significantly restricted by external constraints. The court uses the "acid test" to determine if such deprivation exists, focusing on the level of supervision and the ability to leave the place of residence.

The "Acid Test"

Originating from the Cheshire West case, the acid test assesses whether a person is under complete supervision and control and lacks the freedom to leave the place where they reside. It's a stringent standard used to ascertain deprivation of liberty.

Storck Criteria

Derived from Storck v Germany, these criteria determine deprivation of liberty through:

Physical confinement to a specific location.
Absence of valid consent to the confinement.
State responsibility for the confinement.

Conclusion

The RD Re [2018] EWFC 47 judgment provides a nuanced application of deprivation of liberty principles within the context of child care. By meticulously applying established legal frameworks, the court ensured that RD's placement was both necessary for her welfare and compliant with human rights standards. This case serves as a pivotal reference for future proceedings, balancing the imperative to protect vulnerable children with the obligation to respect their personal liberties.