Restricting a Child's Liberty

1. Introduction

The purpose of this policy is to ensure a consistent approach across the Local Authority when a child, who is placed in accommodation by the Local Authority, is cared for in such a way as to amount to a deprivation of that child's liberty.

Article 5 of the Human Rights Act states that 'everyone has the right to liberty and security of person and no one shall be deprived of his or her liberty unless in accordance with a procedure prescribed in law'.

A 'deprivation of liberty' occurs when there has been a breach of a child or young persons' article 5 rights.

The Cheshire West cases heard in 2014 widened the situations in which a deprivation occurs and introduced a threshold called the “acid test” to determine what amounts to a deprivation.

2. Requirement to Authorise a Deprivation of Liberty?

No one (adult or child) should be deprived of their liberty save in accordance with a procedure prescribed by law. If such a procedure is not followed then the person is deprived of their liberty unlawfully.

Where a person is unlawfully deprived of their liberty they may be able to claim damages for a breach of their human rights against the person or organisation who is unlawfully depriving them of their liberty. There is no defence to liability where it is known or believed, or ought to be known, that a deprivation is occurring.

A Local Authority is able to authorise a deprivation for a person over the age of 18 years under the Deprivation of Liberty Safeguards (DoLS) process if they are in a care home or hospital. Deprivation of an over 18 year old in a community setting can be authorised by application to the Court of Protection (where the person lacks capacity to consent to their arrangements). However, the Local Authority is unable to authorise a deprivation of liberty for a person under the age of 18 years old. This will change when the Liberty Protection Safeguard (LPS) process comes into force however this is very delayed and an implementation date is unknown. Under LPS the Local Authority will be able to authorise a deprivation for children over 16 years of age who lacks capacity.

A person with parental responsibility may consent to a deprivation of their child's liberty even if that child is placed in Local Authority accommodation (such as S.20 or S.17) so long as the child is not subject to a care order, although this ends when the child reaches the age of 16.

A child who has capacity and is over the age of 16 years old may consent to their deprivation so long as they are considered able to:

• Decide on residence to receive a package of care;
• Consent to the package of care;
• Where there is a valid consent then there is no deprivation of liberty.

When a child is deprived of their liberty in a hospital it is for the hospital to ensure that this is a lawful deprivation. However, the Local Authority will likely be involved in deciding whether a deprivation of liberty is needed in the child's home or 'community' following discharge. Be mindful that deprivations can occur in any setting.

There is a need to obtain Court approval where a deprivation is not authorised by a parent, the young person or under DoLS/ LPS.

If there was is a dispute about whether the deprivation is in the 'best interests' of the child then the matter should be place before the Court for authorisation of the deprivation.

3. Determining if there is a deprivation of liberty?

In order to make a decision whether or not there is a deprivation of a child's liberty it is necessary to consider the whole circumstances for a child. Assistance from the legal team or experienced social work practitioner might be necessary to determine if there is a deprivation. It is likely that a deprivation of liberty is occurring if a child is:

• Under continuous supervision or control;
• Not free to leave the place where they are receiving care or treatment;
• The level of deprivation is not comparable to the level of restriction normally placed on a child of that age;
• Receiving care or treatment which is imputable to the state.

Deprivations of liberty can occur in a range of settings, including the child's home, school or college, when travelling or when in the community (including day placements or activity venues). Different restrictive regimes may be in place in different settings and all or some of those regimes may amount to a deprivation. A person does not have to be under a deprivation at all times and in all locations in order for a deprivation to occur.

Continuous supervision and control

Whenever care or treatment is provided there will probably be some element of supervision or control. For example:

• The child may require monitoring when taking their medication; or
• They may have the nature of their food choices restricted due to a risk of choking.

Supervision and control is only deemed to be 'continuous' in nature if the overall impact on the child's life is significant.

The following are examples of situations when supervision and control is likely to be continuous:

• The child needs frequent or constant supervision for their safety;
• The child is only ever left on their own for short periods of time;
• Most aspects of life are decided by others (e.g. what to wear, what to eat, when to get up or go to bed, how to spend their time);
• The child is not permitted to carry out everyday tasks (such as bathing) without the support of others;
• The use of restraint or medication to routinely manage behaviour.

It is accepted that children in modern day life may lead more restricted lives than previous generations. When considering whether a child is living a more restrictive life, they should be compared to the non-disabled child of their age.

Not free to leave

A child is not free to leave if they:

• Are required to be there to receive the care or treatment; and
• Would be prevented from leaving if they attempted to do so.

An important thing to remember about being 'free to leave' is that it does not matter whether the child is asking or attempting to leave; what matters is the response that they would receive if they were to do so. As a child ages and becomes a young person they will be expected to be allowed a greater degree of freedom. It is accepted that there will be some level of control over a child/young person and that the typical child/young person under 18 is not free to choose where to live.

Not comparable level of restriction

A child is likely to be deprived of their liberty when the level of deprivation is greater than the level of restriction normally placed on a non-disabled child of that age. The level of deprivation placed on a child under the age of 10 years old makes it unlikely that any child under that age could be subject to a deprivation of their liberty.

The restriction should be compared to other child of the same chronological age. Characteristics such as physical or emotional health, maturity, gender and disability or learning impairment are not considered when comparing the level of restriction.

When care is being provided by the child's family in the family home, consideration maybe given to the context of that particular family, having regard to:

• Their beliefs and values; and
• The level of restriction placed on non-disabled siblings of a similar age; unless
• The level of restriction being placed on non-disabled siblings is not deemed appropriate.

Imputable to the state

The detention must be "imputable to the State". Care and treatment is imputable to the state if:

• It has been arranged or provided by the Local Authority; or
• It has been arranged or provided by the NHS; or
• A child's family has made their own arrangements for care, but if they didn't have the means to continue to do so the Local Authority would have (or be likely to have) a duty to meet their needs.

When is a restriction a deprivation

The difference between a deprivation of liberty, a restriction and a 'restrictive physical intervention' is a sliding scale and the care arrangement must be looked at as a whole to consider whether a deprivation of liberty exists.

If the restrictive physical intervention is being used routinely as a way to manage the child's behaviour it is likely that this amounts to continuous supervision and control, which would then indicate that a deprivation of liberty may be occurring.

There are 4 broad categories of restrictive physical intervention:

• Restraint;
• Holding;
• Positive touching; and
• Presence.

The use of a physical intervention does not amount to a deprivation of liberty when:

• The person providing care or treatment is using the restrictive physical intervention appropriately; and
• The restrictive physical intervention is not used routinely as a method to manage behaviour

4. A Deprivation of Liberty must be in the 'Best Interest' of the Child

Where the young person is 16+ and lacks capacity a Best Interests decision is a decision made by applying the Best Interest principle, as set out in the Mental Capacity Act 2005. Children under the age of 16 and young people who have capacity will also need decisions to be made in their best interest but will not fall within the remit of the Mental Capacity Act 2005.

Article 3 of the Convention on the Rights of the Child places the Best Interest of the child as a paramount consideration. The principle demands decision makers to seek the best outcome for the children concerned, but that this has to be weighed against other interests including keeping the child safe and alive. While adults are able to make unsafe or dangerous decisions it is accepted that the role of adults around children is to take the required decisions to keep the child safe.

The Best Interest Decision is a decision made for and on behalf of a person who lacks capacity to make their own decision and can only be made when the matter to be decided is a matter that it would normally be within the person's power to decide (and not something that would normally be outside of their control). The Best Interest decision should wherever possible reflect the decision that the person lacking capacity would make for themselves if they were capable of doing so.

Where reasonably ascertainable the decision should be made with reference to:

• Relevant circumstances;
• The past and present views, wishes, beliefs and values of the incapacitated person;
• The risks and benefits of the full range of available options;
• The views of everyone consulted about the past and present wishes and feelings, and the best interests of the incapacitated person;

The Best Interests decision should be an evidence based and positive approach to risk and objectively made.

5. Least Restrictive Regime

A decision to deprive liberty must only be made when it is the least restrictive option for the child/young person and should only be implemented once there is an appropriate authorisation in place.

The regime which amounts to a deprivation of liberty should be prescriptive and it should be clearly recorded what the regime entails and what amounts to an authorised deprivation. It should be clear when the authorisation expires.

The Court, child or parent are asked to approve the maximum permitted level of deprivation. Authorisation is permissive and not prescriptive; the approval may be for a more restrictive regime than is needed at all times. A person may not require that level of deprivation and should only be deprived to the extent that they require it.

A person should only be deprived of their liberty to the extent that it is necessary and proportionate at any point with reference to the location and nature of any activity or the person's present.

The use of a deprivation should be for the minimum period necessary, following an assessment of likely risk to the child, others and public safety at that time.

6. Decision to Restrict Liberty

The decision to restrict liberty should be made prior to the restriction occurring and should follow the process below. It is accepted that on rare occasions, such as when reviewing care arrangements, it is believed that a deprivation is already occurring as a result of safeguarding measures being undertaken. On those occasions this process should be followed as soon as practically possible.

Where a social worker believes that there is a deprivation there should be consideration with a team manager and where appropriate the legal team to determine if the current or proposed regime amounts to a deprivation.

If it is believed that there is a deprivation the social worker should consider whether this is necessary and proportionate and make a Best Interest Decision the social worker should consult and take account of the views of relevant people. These people should be involved when reconsidering best interests decision or when making any significant changes to the deprivation arrangement:

1. The child;
2. The child's parents and those with Parental Responsibility;
3. Anyone who is not a parent but has been caring for the child;
4. Other members of the child's family who are significant to the child;
5. The child's school and/or the Education Service;
6. The Youth Offending Team, if the child is known to them;
7. The child's Independent Visitor if appointed;
8. IRO or CP chair;
9. CAMHS or other health practitioners involved with the child to determine if the child should be detained under the Mental Health Act 1983;
10. Police, if appropriate, to determine whether they are planning take protective steps.

If it is believed that there is a deprivation it must be determined if the deprivation can be authorised without court intervention. If the child is over 16 years old this will require the social worker to undertake an assessment of capacity. In some instances the social worker may need to determine if a parent has the capacity to make such a decision.

In the event that the child and / or person with parental responsibility does not agree that the proposed regime of deprivation is in the Best Interest of the child then the Local Authority should be making an application to court for authorisation.

Where the court is required to authorise the deprivation the social worker should arrange a legal meeting to agree the process for the application and confirm that such authorisation is needed by completing the Legal DOL instruction sheet.

Approval

Any decision to place a child under a regime which amounts to a deprivation requires approval in line with the Scheme of Delegation i.e. Service Manager in consultation with Legal Team and Director who will chair the LPM. This decision making by Director and Service Manager must be placed on the child's file.

The view of the IRO or CP Chair must also be sought at this initial stage (see Section 10, Transition to Adult Services).

To seek approval the child's social worker must provide in writing the following information:

• The child's name, address, date of birth, ethnicity, school and names of those with Parental Responsibility;
• The proposed regime with reference to level of supervision and other restrictions i.e. locked windows and doors, removal of sharp objects, room checks etc.
• Details of where the child will reside and a clear view of the aims and objectives of such a placement;
• Written legal advice or minute of the legal meeting which should be also on the child's file;
• What alternatives have been tried / considered and the outcomes/ what the least restrictive regime would be;
• An outline of the best interest decision;
• The view of the child and the parents / others who have Parental Responsibility;
• The views s of the Team Manager/ IRO/ CP Chair and other relevant professionals;
• A chronology.

7. Process for Court Approval

Court approval for children under the age of 18 takes place in the National Deprivation of Liberty Court which sits within the Family Division of the High Court and was launched on the 4th July 2022.

The following paperwork is required:

• Form C2: Application for permission to start proceedings which can be included within the C66;
• Form C66: Application for leave to involve inherent jurisdiction order and for authorisation of deprivation of liberty;
• A statement in support of the application;
• Supporting reports, assessments and documents to evidence why the deprivation of liberty is necessary.

There should not be a delay in making the application where a deprivation is believed to be in existence and the application should be made before the deprivation starts. Where an urgent authorisation is needed an out of hours or same day urgent hearing can be arranged if necessary.

Once issued the Court will determine if the matter will remain in the High Court Family Division in London or remitted to the local court. Where there are ongoing family proceedings it is likely that the proceedings will be allocated to the Family Court in Swindon and placed before a circuit judge who is authorised to sit as a High Court Judge.

The Local Authority should serve notice of the hearing on all parties and CAFCASS. Legal Aid is not currently available for parents in these proceedings.

Where an urgent hearing is needed or where the placement is unregulated the court is likely to seek the matter return within a week and will made only a short order.

The Court will list the matter to a final hearing to determine the Local Authority's application as soon as it is able to do so. Where the Local Authority are able to provide the court with a clear care plan and detailed information of either an exit plan from the regime or a transition plan to adult services, proceedings should be resolved swiftly.

Where the child is in a registered and regulated placement proceedings should not be protracted. However where there are linked care proceedings or the placement is unregistered and/or unregulated the final determination of the application maybe delayed until the final care plan / placement can be determined. Where there is a requirement for specialist assessments to determine whether the regime is appropriate proceedings may be more protracted.

The child or the local authority may appeal to the Court of Appeal against the making, or refusal to make, an order.

Where a child is aged 16 or 17 years of age and it is likely that as an adult the authorisation to deprive will still be needed it is possible to make an application to the Court of Protection. This will only be where the deprivation can be authorised under the Mental Capacity Act 2005 and therefore the child manifestly lacks capacity and has a disability which gives rise to a lack of capacity which is life long or long term. The process is the same but the application is on a COP1, COP1B, COP3 (capacity assessment ) and the statement will be written on a Cop24 and will require a separate care plan. For a COP application this will be issued in the Bristol County Court and may then be remitted back to Swindon to be heard by a Judge with the appropriate judicial ticket.

Where a DOL is granted the Social Worker must alert the Court and Pre-Proceedings Manager so that the order can be tracked and monitored through the PLO and Court tracker and Care Planning Group.

The Social Worker should ensure the child has been offered the support of an independent Advocate

8. Support, Monitoring and Ending of Placements

The child's social worker must visit the child in the placement within one week of the order being made. The child's social worker should ensure that the child's placement have a copy of the order and any interim order and are aware of what is and is not authorised.

Where a child is in a subject to a deprivation of liberty and placement is unregistered and or unregulated the child should be visited by the social worker (see Social Worker Visits to Looked After Children) in accordance with the unregulated placement policy.

The Best Interests Decision and the suitability of the continuation of the deprivation of liberty should be reviewed in line with the child's care plan on a case by case basis. As a minimum it should be reviewed at each CLA review.

When a child is made subject to a DOL the IRO should within a week complete a mid -point review and consider whether an increased level of monitoring or an escalation is required.

The IRO should also make contact with the child to seek their views and ensure that an Advocate has been offered to them.

This midpoint review should ensure that the decision making of the Director and Service Manager is on the child's file as well as minutes of LPM.

A child who is subject to a DOL must have up to date supervision which reflects the need for a DOL to be applied for and why it should continue.

The Social Worker must ensure that the child's case summary is up to date so that EDS are clear on this child's status and that of the placement out of hours.

Once a DOL has been granted the SW/TM/SM must ensure a NTK is completed for the Director and Corporate Director.

9. Ending of a Placement

An authorisation to deprive a child of their liberty is location specific. If the child's placement ends the authorisation will need to be amended either by the Court or the child / parents if they were the person's providing the authorisation.

10. Transition to Adult Services

An authorisation to deprive a child/young person of their liberty does not authorise an adult to be so deprived and will expire when the young person attains 18 years of age.

The social worker must liaise with the transitions team for Adult Services to ensure that a Care Act assessment and DoL/DOLS (dependent on setting) is completed before the child turns 18, or with the positive futures team if the child is not going to be Care Act 2014 eligible.

An adult, where they have capacity, is considered as being able to make dangerous decisions even if that places them at risk of death.

11. Extending the Authorisation

An authorisation by the Court is time limited. Where a final order has been made and proceedings ended the Local Authority can not apply to extend the Order which would be an amendment to the current authorisation.

When the authorisation to deprive is coming to an end there should be consideration of whether the deprivation should continue. This will require the Best Interests decision to be updated no less than 6 weeks before the order expires (this may be completed by, or in conjunction with, Adults Services if the young person is turning 18). The Pre proceedings and Court Manager will ensure that this timescale is adhered to through their tracking of the DOL.

The decision, authorisation and application process are as set out above for any further authorisation.