Deprivation of liberty in relation to children and young people
A child or young person cannot be deprived of their liberty unless it is justified and lawfully authorised. Caroline Bennett, author of the latest Research in Practice Strategic Briefing, discusses the area of decision making and mental capacity for children and young people.
I am the Assistant Director for Social Care at the Council for Disabled Children (CDC), part of the National Children’s Bureau (NCB). Since the age of 16 I have volunteered or worked directly with disabled children, young people and their families. My previous roles have varied from a 1:1 support volunteer for a child with autistic spectrum disorder (ASD) to a Care Quality Commission (CQC) registered manager of a local authority short break service supporting children and young people with complex needs, including those with behaviour that challenges.
In all of these roles I was involved in systems, assessments and planning processes that employ a variety of approaches to meeting the needs of children and young people with a focus on promoting their wellbeing and keeping them safe. On reflection, the majority of them also created opportunities to regularly review and ensure the least restrictive approach was taken, the ‘zone of parental responsibility’ was understood and to identify where a child might be deprived of their liberty (DoL) however it was rare to explicitly consider it in that context.
‘Depending on the age and maturity of children and young people, it would be entirely normal to expect their liberty to be restricted through day to day family life and the exercise of parental control to keep them safe. However, as they get older they start to take on their own decision making responsibilities and increase their independence.
For some children and young people these restrictions may continue or increase as they get older, for example where there is a mental health need, learning disability, behaviour that challenges or other risk of harm such as child sexual exploitation or radicalisation. Restrictions such as these may be absolutely necessary for the safety and wellbeing of children and young people however, it is also the case that robust safeguards must be in place to ensure that children and young people’s rights are respected.’ - Deprivation of liberty in relation to children and young people: Strategic Briefing
The area of decision making and mental capacity, including ‘Gillick’ competency, for children and young people has become increasingly recognised as an area requiring significant focus and practice development. Particularly in the context of legislative change in relation to the Children and Families Act 2014, the Care Act 2014 and the implications of case law.
The landscape surrounding this sensitive issue is complex but the underpinning principle is not.
We know that everyone has a right to liberty under article 5 of the European Convention on Human Rights (ECHR). This protects the right to liberty and security of a person and set outs that no one should be deprived of their liberty unless it is justified and carried out in accordance with article 5.
In other words, a child or young person cannot be deprived of their liberty unless it is justified and lawfully authorised. The challenge arises when we start to consider the number of children and young people who might be currently deprived of their liberty, in various settings, and to explore the systems available for identifying and authorising a DoL.
The duties in the Mental Capacity Act 2005, which applies to those aged over 16, and the Deprivation of Liberty Safeguards which apply to those over 18 who are in a care home or hospital means that many approaches have been developed in Adults’ Services, but their implications have not been considered for children and young people.
‘A fundamental finding of both the Law Commission’s report and the consultation paper on Mental Capacity and Deprivation of Liberty was that a person’s age or disability should not be the starting point for considering the right to protection. The judgment of Birmingham City Council v D  EWCOP 8 concluded that the present law places young people at a distinct disadvantage compared to those over 18.’ - Deprivation of liberty in relation to children and young people: Strategic Briefing
Moving forward, there will need to be clear processes in place for identifying where children and young people are likely to have their liberty restricted and for obtaining lawful authorisation where they are deprived of liberty.
Given the current pressures on Children’s Services it is vitally important that wherever possible processes are aligned with the existing systems that are set up to support children and young people. Such as:
- The Education, Health and Care (EHC) needs assessment, planning and review process;
- The duty to carry out a transition assessment under the Care Act 2014;
- The processes surrounding looked after children such as visits, reviews and pathway plans including the role of Independent Reviewing Officers (IROs), social workers, providers and foster carers.
The new Research in Practice Deprivation of liberty in relation to children and young people: Strategic Briefing shares top tips for developing practice in this area under a number of key themes:
- Systems, assessments and planning
- Record keeping
About the author
Bennett, C (2017) Deprivation of liberty in relation to children and young people: Strategic Briefing. Dartington: Research in Practice.
Government Legislation (1998) European Convention on Human Rights (ECHR). Legilation.gov.uk. Available online: www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/4