We were reminded in a recent mental health case of ours that what may be a deprivation of liberty for an adult may not necessarily be a deprivation of liberty for a child.
The case in point involved a 15 year old child on a psychiatric ward. The child was not detained under the Mental Health Act 1983 (‘MHA’) but was being prevented from leaving the ward by themselves on unescorted leave.
Was there a deprivation of liberty?
The first issue was whether these arrangements amounted to a deprivation of liberty. If they did, there needed to be a legal procedure in place to authorize them, in order to ensure compliance with Article 5 of the European Convention on Human Rights (‘no one shall be deprived of his liberty save…. in accordance with a procedure prescribed by law’).
Did the arrangement amount to a deprivation of liberty? Well, an essential element in answering this question is to establish whether, objectively speaking, there is a ‘confinement’ of the individual concerned.
Was there confinement? In the Cheshire West case (P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor  UKSC 19), Baroness Hale famously defined the ‘acid test’ for confinement as being "whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives’.
With an adult who was on a psychiatric ward and was prevented from coming and going as s/he saw fit, the position would be plain. Such circumstances would amount to ‘complete supervision and control’, there would be an objective confinement, and, therefore, there would be a deprivation of liberty.
With a child, however the situation is slightly more complicated. For children, even though the arrangements in place may be considered to constitute ‘complete supervision and control’, they will not necessarily be regarded as confinement and therefore a deprivation of liberty.
This is because the courts have acknowledged that interference with a child’s freedom as part of the exercise of reasonable parental control over that child may well simply be regarded as a restriction of the child’s liberty (which does not engage Article 5), as opposed to a confinement or a deprivation of liberty (which does).
In the case of Re K (A Child) (Secure Accommodation Order: Right to Liberty)  for example, Judge LJ considered the following to be examples of restrictions rather than a deprivation of liberty:
"…the way in which parents restrict the movements of their children from time to time by, for example, putting young children into bed when they would rather be up, or "grounding" teenagers when they would prefer to be partying with their friends, or sending children to boarding schools, entrusting the schools with authority to restrict their movements … "grounding" a teenager, or ensuring that a group of teenagers at a boarding school are all back within school bounds by a certain time each evening …"
This does not mean that restrictive arrangements in respect of any child will always fall outside the definition of a deprivation of liberty. Crucially, allowance has to be made for factors such as the age of the child and for prevailing values. According to Munby P in A-F (Children)  EWHC 138 (Fam) (31 January 2018), what is important is the extent to which any restrictions reflect societal norms in respect of a child of that age and background. The more they do, the less likely they are to amount to a deprivation of liberty:
‘whether a state of affairs which satisfies the "acid test" amounts to a "confinement"…..has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability" ’
In the same case, Munby P, whilst noting that all cases had to be considered individually, offered the following rule of thumb guidance:
- If the child is 10 or younger, constant supervision or control is unlikely to be regarded as confinement/deprivation of liberty
- If the child is 11, constant supervision or control may be regarded as confinement/deprivation of liberty
- If the child is 12 or over, constant supervision or control is more likely to be regarded as confinement/deprivation of liberty.
So, applying these principles to the case with which we were dealing, the prevention of a 15 year child from leaving a unit unaccompanied was, by virtue of their age and their relative maturity, to be regarded as confinement and, therefore, a deprivation of liberty, which meant that some formal legal framework of authorization was required.
Had the child been 10, pr perhaps even 11, the situation would have different. There would not have been a deprivation of liberty, and, in those circumstances, general parental consent was likely to have been sufficient to justify the arrangements.
Form of authorization required for a deprivation of a child’s liberty?
What form of authorization is required when there is a deprivation of liberty? With a child under the age of 16, very simply, the answer depends on whether the child is Gillick competent or not, ie whether s/he has sufficient understanding and intelligence to understood fully the proposed decision (Gillick v West Norfolk and Wisbech Area Health Authority. 1986. AC 112).
If, as in our case, the child is Gillick competent, bearing in mind Article 5 of the ECHR, it is highly unlikely that a court would ever allow parental consent as the basis for authorizing any deprivation of liberty. The detaining hospital would need to rely on the MHA. To justify the ongoing restrictions, the hospital therefore has to show that the child meets the criteria for detention under either s2 or 3 of the Act.
If the child was not Gillick competent, however, it is fair to say that there is much more uncertainty as to the correct legal position, and it is possible that the court would see parental consent as sufficient to authorise the deprivation of liberty, without the need for the MHA.
Michael Butler, 13 February 2023