Public Law
March 2022

Counsel from St. Mary’s Chambers, Stephen Williams, was instructed pro bono for the Appellant Mother in the Court of Appeal. McFarlane P, LJ Peter Jackson and LJ Nicola Davies allowed the appeal which concerned the adequacy of a judgment leading to the making of a placement order in respect of E, a boy then aged 18 months.

Background: E is the youngest of the mother's five children. E had been in foster care since birth, except for a period between September 2020 and January 2021 during which he was placed in a residential assessment unit with his parents. The final report of the residential assessment dated December 2020 concluded negatively.

The parents have a long history of social care involvement. The mother’s first child, C, was born in 2006 during a violent and abusive relationship. The parents' own relationship began in 2009 and they married in 2011, after which they had three children who, along with C, became the subject of earlier proceedings and have since been adopted.

E was born in August 2020. Proceedings were brought by the local authority, relying on the findings from the previous proceedings, the parents' denial of the previous problems, longstanding concern about the father's cannabis use, the mother's dependant personality style, the father's impulsivity and severely insecure attachment style, and the parents' inability to work honestly and openly with professionals.

A single joint expert was authorised to undertake a psychological assessment of both parents, including a risk assessment addressing the findings made in previous proceedings. The expert’s report dated 3 December 2020 concluded that the parents would need to demonstrate a sustained period of change and would require therapeutic input over a period of at least six months, without there being any guarantee of a successful outcome [4].

The final hearing of the local authority's application took place in November 2021 and evidence was heard over four days from the expert psychologist, the social worker, the residential assessors, the parents and the guardian [6].

The appeal: The principal grounds of appeal in summary amount to [1] that the judge did not conduct an adequate analysis of the evidence (including the oral evidence) and [2] that the judge's welfare analysis was legally in error. It was also a matter of concern that the judgment did not identify the basis upon which the judge found that the CA 1989, s 31 threshold criteria were met.

Threshold criteria finding: The Judge at first instance gave an extempore judgment on 24 November 2021. The judgment did not record any finding as to threshold. It was submitted by Mr Williams that only part of the local authority document had been accepted by the parents and, although it was conceded that the CA 1989, s 31 threshold criteria were met, the basis upon which the threshold was crossed must be limited to those concessions in the absence of any wider finding by the Judge. McFarlane P referred to Sir James Munby P in Re A (A Child) [2015] EWFC 11 (Fam) and the Court of Appeal in Re J (A Child) [2015] EWCA Civ 222 which gave detailed guidance in relation to the establishment of the threshold criteria and the need to specify in the case of each allegation how and why it would establish that the child 'is suffering or is likely to suffer' significant harm [16]. In S & H-S (Children), McFarlane P offered guidance on this issue in paragraphs 56-61.

Failure to engage with the oral evidence: The essence of the appellants' case was that both the final reports from the residential assessment and from the psychologist were dated December 2020. The final hearing took place in November 2021. During the intervening period the parents' lives had moved on and improved in several respects relevant to their ability to provide safe and good enough parenting for E [19]. McFarlane P found that there was effectively no account by the judge of the parents' evidence or of the general case put forward on their behalf. This, in his view, was a significant omission. McFarlane P stated that “A parent in proceedings of this nature should expect to see from the judgment that their case has been 'heard', with the judgment containing at least a short summary of their position and the judge's reasons for discounting it, if that is the position” [21].

It was highlighted, “quite properly”, that immediately after the judge had given judgment, Mr Williams sought clarification on four points one of which was specifically to question the lack of reference to the psychologist’s evidence with respect to 12 months of substantive change. In response the judge, without responding to any of the specific points, said: "when one gives an ex-tempore judgment quickly following closing submissions in the case, one cannot deal with every single issue, but I am satisfied that I have dealt with all the issues that were material to my decision" [28]. McFarlane P was driven to the conclusion that the judge failed to engage with this central issue, which went directly to the question of the assessment of future risk and was therefore central to the case [32].

Should the welfare decision have been taken under CA 1989 or ACA 2002? The choice facing the court in the present case was a straight one between placing E in the care of his parents or pursuing the local authority plan by placing him for adoption. That choice, McFarlane P stated, plainly involved coming to a decision relating to adoption and the court was required to apply the ACA 2002, s 1 provisions when making its decision [37]. McFarlane P found that in the present case the judge fell into error, as a matter of law, in conducting his entire evaluation of the proposal that E should be placed with his parents within the context of CA 1989, s 1. The judge reached his conclusion on this point before making any reference to the requirements of ACA 2002, s 1, or adoption and 'nothing else will do'. The decision in the case involved determining whether E was to be placed with his parents or adopted (or as the judge added, placed in long-term foster care). The presence of adoption in the range of realistic options dictated that ACA 2002, s 1 was the relevant provision, and the judge was in error in making any reference to CA 1989, s 1 in that context [38].

McFarlane P added further, that even if the judge had been correct in conducting a separate analysis of the care order application under CA 1989, s 1 (which he was not) a crucial stage in that evaluation was missed out. By CA 1989, s 31(3A), a court deciding whether to make a care order is required to consider the 'permanence provisions' of the local authority care plan. The permanence provisions in the care plan for E were for adoption, and there was a requirement to consider adoption, rather than looking solely at the option of parental care. The judgment did not contain any reference to the local authority plan of adoption during the evaluation of the care order application; had it done so, this step may have headed the judge away from his error in determining the issue under the incorrect statutory scheme [39].

What is the place of a s 31 care order application in 'placement for adoption' proceedings? McFarlane P stated that, when making a placement for adoption order under ACA 2002, s 21, a court will normally also make a care order, the placement application, and not the CA 1989, s 31 application, is the primary application before the court. He added that it is not merely unnecessary for the court to consider the care application on its own, and before turning to the placement order application, it is wrong to do so and may readily lead to the error in the choice of statutory welfare requirements into which the judge fell [40]. McFarlane P highlighted that the need for the s 31 threshold to be crossed is expressly incorporated within the ACA 2002 process, and there is no need for there to be a separate evaluation by hiving off the CA 1989, s 31 application and dealing with this first [41].

A linear analysis? McFarlane P referred to a series of judgments, most notably Re B-S (Children) [2013] EWCA Civ 1146 and Re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 3273, where the Court of Appeal has stressed the need for a court that is determining an issue relating to adoption under ACA 2002, s 1 to conduct a holistic balancing exercise, in which each of the realistic options for the child's future is assessed against each other. McFarlane P described the required approach in Re G (A Child) [2013] EWCA Civ 965 (at paragraph 54). McFarlane P found that the judge at first instance, having held that placement with the parents was one of the 'realistic options' for E's future care, was wrong to dispose of that option by a preliminary ruling which then removed it from the list of options during the course of the same judgment.

Conclusion: McFarlane P allowed the appeal on the basis that the judicial analysis fell significantly short, not only in terms of evaluation of the evidence and the central point of the parents' case, but also because of the structure and content of the essential welfare balancing exercise which was, in a number of respects, fundamentally flawed as a matter of law [52].

LJ Peter Jackson provided some general guidance of a good judgment that will, at some point and as concisely as possible [59]:

(1) state the background facts

(2) identify the issue(s) that must be decided

(3) articulate the legal test(s) that must be applied

(4) note the key features of the written and oral evidence, bearing in mind that a judgment is not a summing-up in which every possibly relevant piece of evidence must be mentioned

(5) record each party's core case on the issues

(6) make findings of fact about any disputed matters that are significant for the decision

(7) evaluate the evidence as a whole, making clear why more or less weight is to be given to key features relied on by the parties

(8) give the court's decision, explaining why one outcome has been selected in preference to other possible outcomes.

Finally, it was highlighted that this is a case in which the parents have had the good fortune of excellent pro bono representation by Mr Stephen Williams, trial counsel for the mother, and by Ms Lucy Limbrey, for the father. Their involvement was arranged through Advocate, and “it had been instrumental in the outcome of the appeal…this appeal underlines the extent to which the administration of justice depends upon lawyers who are willing to step up to represent litigants in person, and upon the organisations that facilitate this” [64].

This is a “shocking” case in which MacDonald J refused to authorise a deprivation of liberty of a 14-year-old child (ST). MacDonald J found that the attempts of the Trust, in good faith, to meet ST’s needs in a placement that is entirely unsuited to that task, had resulted in a situation that is a brutal and abusive one for ST.

MacDonald J acknowledged that the court is regularly faced with applications under the inherent jurisdiction for declarations authorising the deprivation of liberty of children and young people in circumstances where there is an acute shortage of suitable residential therapeutic placements to meet their needs [1]. He added that, as “used as this court is to dealing with the plight of vulnerable children and young people caught up in the foregoing circumstances, it is difficult to describe the case that comes before the court this morning as anything other than shocking” [2]. The reason being that it concerns a child who has been known to the local authority, Manchester City Council, for an extended period and, moreover, a child who currently has an allocated social worker. Furthermore, the application for a declaration under the inherent jurisdiction of the High Court authorising the deprivation of ST's liberty was made not by the local authority that has allocated a social worker to her, and is charged with safeguarding and promoting her welfare, but rather by the NHS Trust responsible for the hospital ward where ST was currently placed [3].

Background: Prior to her admission to hospital, ST lived with her parents and two younger siblings. Her parents found it increasingly difficult to manage her challenging behaviours in the context of her complex needs [7].

On 21st January 2022, following a previous attempt by the family to present ST to the hospital, Dr S advised that ST should not be admitted to hospital unless there was a medical need as "there is clear risk of harm to her and others if she is admitted and this is not an appropriate place of safety in a crisis". Notwithstanding this advice, ST was admitted to hospital on 15 February 2022. The refusal by the family to take ST home left the Trust with no choice but to admit her to the ward as a place of safety. It was highlighted that the local authority at this point did not make an application for an interim care order in the circumstances where there were reasonable grounds for believing that ST was suffering, or was likely to suffer, significant harm and that the harm, or likelihood of harm, was attributable to ST being beyond parental control.

ST was subject to a deprivation of her liberty from the point of being admitted to hospital [14]. Following her admission, the local authority employed a private company to provide two security guards and two carers in order to supervise ST on a 4:1 basis. Since her admission there had been a litany of incidents in which ST's welfare was fundamentally compromised by the actions forced on those purporting to care for her by the fact that her placement is manifestly inappropriate having regard to her needs. The incidents that took place prior to 18 March 2022, occurred without any declaration in place authorising the deprivation of ST's liberty.

As ST's behaviour deteriorated, there were occasions when ST had been administered oral chemical restraint in order to tranquilise her [17].

No application for a declaration to authorise the deprivation of her liberty was made by the NHS Trust nor Manchester City Council until 17 March 2022 [19].

The Law: MacDonald J summarised the legal principles governing the determination of an application for an order authorising the deprivation of a child's liberty under the inherent jurisdiction of the High Court in Salford CC v M (Deprivation of Liberty in Scotland) [2019] EWHC 1510 (Fam). It is a fundamental principle of a democratic society that the State must adhere to the rule of law when interfering with a person's right to liberty and security of person (see Brogan v United Kingdom (1988) 11 EHRR 117 at [58]). MacDonald J found that, on the face of it, both the NHS Trust and Manchester City Council have failed in this case to adhere to this cardinal imperative [22].

MacDonald J set out that the court may grant an order under its inherent jurisdiction authorising the deprivation of a child's liberty if it is satisfied that the circumstances of the placement in question constitute a deprivation of liberty for the purposes of Art 5 of the ECHR and if it considers such an order to be in the subject child's best interests [23].

With respect to the question of whether the arrangements in the placement amount to a deprivation of liberty for the purposes of Art 5, in Storck v Germany (2006) 43 EHRR 6 the European Court of Human Rights established three broad elements comprising a deprivation of liberty for the purposes of Art 5(1) of the ECHR, namely (a) an objective element of confinement to a certain limited place for a not negligible period of time, (b) a subjective element of absence of consent to that confinement and (c) the confinement imputable to the State. Only where all three components are present is there a deprivation of liberty which engages Art 5 of the ECHR [24].

In Cheshire West and Chester v P [2014] AC 896 the Supreme Court articulated an 'acid test' of whether a person who lacks capacity is deprived of their liberty, namely (a) the person is unable to consent to the deprivation of their liberty, (b) the person is subject to continuous supervision and control and (c) the person is not free to leave [25]. With respect to the first element of the acid test, on 23 March 2022 the Specialist Learning Disability Nurse undertook an assessment that concluded that ST is not Gillick competent. There was no dispute that the second and third limbs of the acid test are made out in this case.

MacDonald J went on to consider the question of whether the deprivation of liberty identified is in ST’s best interests. Reference was made to Lancashire CC v G (Unavailability of Secure Accommodation) [2020] EWHC 2828 and the difficulty arising in respect of the best interests test in the context of cases of the type currently before the court. MacDonald J went on to raise the question that inevitably flows from this analysis, which is what happens if the court concludes that it cannot authorise the deprivation of liberty as being in the child's best interests [30].

Discussion: MacDonald J concluded that he cannot, in all good conscious, conclude that it is in ST's best interests to authorise the deprivation of her liberty constituted by the regime that is being applied to her on the hospital ward [32]. He was satisfied that the current circumstances are so antithetic to ST's best interests that it would be manifestly wrong to grant the relief sought [33].

MacDonald J added that, in due course he will require a detailed explanation from the Trust and the local authority as to why the advice of CAMHS given on 21 January 2022, that ST should not be admitted to hospital unless there was a medical need as 'there is clear risk of harm to her and others if she is admitted and this is not an appropriate place of safety in a crisis', was not followed [36].

Further, and as MacDonald J noted in Wigan BC v Y (Refusal to Authorise Deprivation of Liberty), the fact that the hospital ward is a wholly inappropriate venue for the deprivation of ST's liberty forces medical staff to step outside the normal safeguards that are put in place in that environment [37]. ST was being prescribed tranquilising medicine orally for the purposes of chemical restraint. MacDonald J stated that he remains to be convinced that this is an appropriate course of action without authorisation of the court in circumstances where the purpose of the medication is plainly one of restraint, and hence, arguably, the deprivation of ST's liberty.

MacDonald J was satisfied that it was appropriate to grant an interim care order on the undertaking of the local authority to issue that application forthwith [40]. In circumstances where ST therefore becomes a looked after child, the local authority has a clear statutory duty to under Part III of the Children Act 1989 to provide accommodation for ST that can meet her complex needs and to safeguard and promote her welfare whilst she is in its care.

MacDonald J stated that it was beyond serious dispute that Manchester City Council had failed to discharge properly its duties towards ST following her admission to hospital, notwithstanding the subsisting allocation of a social worker to her. Likewise, it was beyond serious dispute that the Trust has, at best, been guilty of unacceptable delay in seeking authorisation for the deprivation of ST's liberty. The court provided both the NHS Trust and Manchester City Council with the opportunity to provide a detailed explanation for these omissions. MacDonald J stated that he anticipated that those omissions will also be the subject of examination within the context of a claim in damages under the Human Rights Act 1998 on behalf of ST in due course.

MacDonald J dismissed the application of the NHS Trust and made an interim care order placing ST in the care of Manchester City Council.