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The need for permission to restrict children’s liberty in residential care

In November 2015 a High Court judgement was announced concerning a 14-year-old boy, known as AB. It ruled that any deprivation of liberty of a child who is subject to a care order must have legal authorisation.

This information is kindly provided by Bernard Allen. He is an expert witness with ten years’ experience who has provided liability reports for courts in England, Wales and Scotland. He is on the register of expert witnesses and has been endorsed by a number of leading law firms and QCs.

The reason that this only applies to children with a care order at present is that the court order means the State has taken responsibility. Human rights legislation was brought about to prevent governments from depriving citizens of their liberty. There is currently a vague concept of a ‘zone of parental responsibility’ that gives parents the power to make some decisions on behalf of their children. Unfortunately, nobody knows what it means, and it will have to be decided by the courts in coming months and years.

For the time being Deprivation of Liberty (DoL) means:

  • Where a young person is to be kept under observation, continually or within a time period, e.g. every 15 minutes.
  • where a young person is not allowed to leave the home unaccompanied
  • where a young person will need to be returned to a room by staff, e.g. at night, or during the day.
  • where they are not able to contact family or others independently
  • where sedative medication (in this case for ADHD) acts as a “form of restraint”

Legal permission can only be granted by:

  1. The High Court – for children under the age of 16 years.
  2. The Court of Protection – for young people aged 16 & 17 years of age.
  3. The Local Authority (under DoLs procedures) – for adults aged 18 years and above.

What should providers do?

  1. Conduct an honest risk assessment to determine whether or not any deprivation of liberty is necessary in order to protect the child.
  2. Do the right thing and protect the child first. This should be the paramount consideration, irrespective of anxieties about any recent changes in the law.
  3. If the risk assessment determines that any DoL is necessary bring this to the attention of the social worker, who will need to apply to the relevant jurisdiction to ensure it is legal.

Suggested wording of standard referral letter: “The risk assessment for ………………………………… (D.O.B. …………..) clearly shows that in order to provide a reasonable degree of safety and care it may be necessary to put into place measures that could fall under the definition of a Deprivation of Liberty. Therefore, we request that application be made to the relevant legal authority so that the best interests and rights of all involved are lawfully protected.

In the interim we assure you that we will continue to take necessary and reasonable steps to safeguard …………………………………”

02 Dec 2015
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