Deprivation of Liberty Applications within Family Proceedings

Posted: 07 June 2024

“Liberty” is a right conferred by Article 5 of the European Convention of Human Rights. It is a fundamental right for every individual regardless of age to have the power to do as they please.

Within Article 5, there are limited circumstances where a person’s liberty can be restricted. Given the seriousness of this, there are strict safeguards in these circumstances. These orders can only be made by a high court judge or a family court judge with specific rights. Any deprivation of liberty must be through a procedure prescribed by law and the lawlessness of the decision can be reviewed by the court.

What is a Deprivation of Liberty?

There are three elements which will need to be satisfied for arrangements to amount to a deprivation of liberty:

• The person is confined to a particular restricted place for a “non-negligible” period of time,
• The person does not consent to the confinement, or cannot because they do not have capacity to do so,
• The State is said to be responsible for the deprivation of liberty.

 How are Deprivation of Liberty applications dealt with in the Family Courts?

A child under the age of 18 would have their liberty deprived under Section 25 of the Children Act 1989. Usually, the Local Authority would make this application, alongside an application for a Care Order, to allow them to place a looked after child in a secure children’s home.

The court can make orders relating to where the child resides, whether there will be security measures to stop the child leaving, and whether the child can be subjected to restraints. They may make decisions about what the child’s contact with others will be, and whether they can be restricted on social media or in their communication. The court may also order that the child has their personal belongings searched or restricted.

One of two criterions must be met to allow a child to be placed in this type of accommodation:

• That –
  1. He has a history of absconding and is likely to abscond from any other description of accommodation; and
  2. If the child absconds, (s)he is likely to suffer significant harm;

or

• If the child is kept in any other description of accommodation (s)he is likely to injure her/himself or others.

Who does Section 25 apply to?

Section 25 applies only to “looked after” children. Looked after children are those who have been accommodated for at least 24 hours under a Section 20 Agreement (for more information on Section 20 agreements please click here) or children who are subject to a Care Order.

 Can my child be deprived of their liberty if they are not accommodated by the Local Authority?

There are very exceptional circumstances where an application can be made to the High Court to deprive a child of their liberty when they are not looked after. These applications are made with very careful consideration, and the Children’s Services Legal Team would work with the social worker to review the child’s circumstances.

The High Court can authorise the placement of a child even where the statutory requirements are not met, as long as there is no practical alternative but to place the child in secure accommodation. When considering these applications, the High Court must have the child’s welfare as the paramount consideration. This means that they must undertake a welfare evaluation to determine whether the deprivation of liberty would be in the child’s best interests. The intervention must be necessary and proportionate to protect the child from harm which they would otherwise be exposed to.

 Will the secure placement be regulated?

There is a shortage of regulated and registered secure children’s homes. There is also the possibility that the regulated secure homes do not meet the needs of the child.  Particularly where they have particular individual needs, such as requiring specialist treatment. In these cases, it is necessary to consider alternative placements.

 Will the Local Authority discuss the placement with me?

Once a placement has been identified at a secure unit, the social worker with arrange a meeting with parents, other significant family members, and relevant professionals. The purpose of the meeting will be to share information about the child and their Care Plan.

If you are interested in a confidential chat with one of our family law solicitors regarding how they can support you. Alternatively if you would like further information on the services we offer, please call 01245 493959, 01473 226577, or send an email.