By Tim Sugden, 21st March 2024
On 13th March I observed a remote hearing (COP 14200743) before HHJ Beckley, which concerned the deprivation of a 16-year-old’s liberty.
In the Introductory Notes I was sent prior to the hearing (NB : receiving this document was extremely helpful – if only we could be sent something similar every time!) it was stated that the protected party, P. “… has been diagnosed with 2 genetic conditions that cause brain malformations. Those malformations mean that (P) is developmentally delayed across all areas and requires significant levels of support to ensure that his needs are met. On occasion, (P) can display challenging behaviour.”
P is a looked after young person, the subject of a Care Order, and has been placed since 2020 in a small residential unit.
The Notes stated that P’’s social worker believes that he cannot make meaningful decisions about where he should live and what care he should receive there, and that remaining in his current placement is in his best interests. They also stated:-
“Because of his developmental delays, [P] would likely struggle to meet his own needs (personal hygiene, eating & drinking, taking medication) without the help of staff in the placement. He would be vulnerable if he went out into the community unaccompanied because he would not appreciate potential hazards (eg, traffic). He might also be targeted/exploited by others. [P] is therefore not allowed to go into the community unless accompanied by staff.”
The local authority, the applicant, were therefore applying for an order under the Deprivation of Liberty Safeguards to authorise them, and the staff at the placement, to restrict P’s liberty there, in terms of the continual monitoring of his behaviour and movements, and their possible interventions.
Evidently the local authority had initially asked the court to deal with the application without a hearing. However, having reviewed the papers, HHJ Beckley decided that a hearing was necessary because:
a. [P] would shortly be transitioning to adult social care.
b. [P]’s care plan envisaged the use of restraint as a last resort.
c. [P] should be independently represented.
The hearing itself was very brief and it appeared that representatives for the local authority (Graeme Harrison) and the Official Solicitor (Arianna Kelly) had liaised closely beforehand to come to an agreement on these issues. The judge requested that the final versions of the Orders, with some additional information, be filed, and set a date in early June for a further hearing.
Reflections
It was interesting to me to witness such unanimity and such overall acceptance (without it being overtly stated) that this was a matter that needed to be dealt with in a legal arena, as the last occasion in which I had to deal directly with a DoLS matter myself the landscape had been quite different.
This was a few years ago when I was employed by a local authority (not the one in P’’s case) as an Independent Reviewing Officer (IRO), tasked with monitoring and reviewing the care plans of looked after children and young people. One of these young people (T), who was aged 16-17 and had Down syndrome, had lived with long-term foster parents for many years.
Due to his assessed vulnerability – very similar to that described in relation to P, above – they routinely restricted his liberty. For example he was only allowed to go out on his own for the very short walk to the local shop and back when the family were staying at their caravan near the coast, and never at all when they were at home in London. This was entirely appropriate and correct, and indicated the carers’ loving concern for T’s welfare. No-one – including T himself whose views I and an independent advocate would always separately seek before and during his review meetings – disputed this course of action. But it had no basis in law, only in good practice! And so, in my professional role I started to query this.
Since the Adoption & Children Act 2002, amended by the Children & Young Persons Act 2008, IROs have had the right (nay, the obligation) to challenge the local authority on behalf of or in respect of the children / young people they review. Local authorities have had to put in place a Dispute Resolution Protocol to enable IROs to move up the management line with their concerns if they are not satisfactorily addressed. My professional opinion, having read up all I could on DoLS, was that the local authority who having a Care Order for T were his corporate parents, were acting unlawfully in formulating or agreeing practices restricting his liberty (compared to those enjoyed by non-disabled young people of his age) without it being considered through due legal process. Questions about ‘best interests’ were only relevant up to a point, as they did not override the fundamental principle that T had rights as an individual that needed to be respected and upheld.
At every stage of the Dispute Resolution Protocol, right up to involving the Director of Children’s Services, I was told that a DoLS assessment and referral were unnecessary, as there was (as I have said) no disagreement from anyone as to the need for such measures to protect T. The Legal Department of the local authority were consulted and gave the same response, that the local authority had Parental Responsibility for T and so had the authority to make these decisions.
Fortunately, the final stage of the Dispute Resolution Protocol, as required under the 2002 and 2008 Acts, stipulated that an IRO could, if all earlier stages had been exhausted, refer the case directly to the Legal Team at the Children and Family Court Advisory & Support Service (CAFCASS) and through them to consideration by their specialist lawyers. So I did – and they came back to support my view and to flatly contradict the local authority lawyers.
In the end, the impasse was resolved by I and CAFCASS giving the local authority a deadline to complete the various parts of the DoLS assessment, or otherwise a formal S118 referral would be made to the family court for final resolution of the dispute … and they finally relented and did as required with minutes to spare.
So, being reminded in P’s hearing of all these hurdles that I’d faced previously, and seeing the evident unanimity about the applicable principle and the correct procedure in the consideration of P’s case, was an interesting contrast – although, upon reflection, I would have liked the opportunity to ask P’s IRO how far they might have been involved in the process to get to this stage, and whether they too had had interminable arguments along the way with Children’s Services managers who couldn’t seem to grasp that a disabled young person might actually have an inherent right to age-appropriate levels of personal liberty that could only be curtailed by careful, sensitive, due legal process.
Tim Sugden retired in 2022, after a career in children’s services, to devote his time to providing accommodation and support to refugees from Ukraine.
Promoting Open Justice in the Court of Protection 