Deprivation of Liberty Applications Solicitors

Deprivation of Liberty Applications within Family Proceedings

What defines “deprivation of liberty”?

Article 5 of the European Convention of Human Rights (ECHR) defines “deprivation of liberty”, as the fundamental right of every individual whatever their age, the right to liberty (the power to do as they please). The ECHR was included into national law by the Human Rights Act (HRA) 1998.

In limited circumstances, Article 5 of the European Convention of Human Rights (ECHR) allows an application for a person’s liberty to be restricted and requires strict safeguards to be put in place in circumstances where such liberty is deprived. Such orders can only be made by a high court judge or a family court judge with article 9 rights (usually senior or circuit judges).

A key safeguard is the requirement that any deprivation of liberty must be through a “procedure prescribed by law” and those that have their liberty deprived have the right to have the lawfulness of their decision reviewed by the court.

What relevant legislation and case law is applicable to these applications?

The Supreme Court within Storck- v- Germany [2005] 43 EHRR 96 confirmed that whatever the age of the person, a person`s care arrangements will give rise to a deprivation of liberty if the following of three conditions are met:

• The objective component of confinement in a particular restricted place for a non-negligible length of time
• The subjective component of lack of valid consent
• The attribution of responsibility to the state  

These conditions were further confirmed in the case of P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another [2014] UKSC 19

How do the Family Courts deal with these applications and what orders can be made?

Within the Family Court, a child under the age of 18 would have their liberty deprived under s25 of the Children Act 1989, usually following an application being made by the Local Authority. More often than not alongside this application, the Local Authority would also seek an application for a Care Order under the Children Act 1989. This allows the placement of looked after children in a registered secure children`s home. Section 25 outlines the “welfare” criteria that must be met before a child can be placed in a secure accommodation in that:

• The child has a history of absconding and is likely to abscond from any other type of accommodation
• If the child absconds, they are likely to suffer significant harm (this harm could be harm in the form of sexual exploitation, committing crimes amongst others)
• If the child is kept in any other description of accommodation, they are likely to injure themselves or others

Examples of orders that the court has the jurisdiction to make can include, but are not limited to, the following:

• Decision on where to reside
• Decision on contact with others
• Restriction on developing sexual relations
• Doors to property locked/chained / bolted for security reasons or to prevent the child or young person leaving
• Members of staff accompanying the young person accessing the community
• Mechanical restraints
• Restricted access to personal allowances
• Searching of the young person and or their belongings
• Restricted access to personal belongings to prevent harm
• Managing food intake and access to it
• Restricted access to modes of social communication such as internet, landline or mobile telephones

Specialist DOLS Court

In recent years due to a shortage of properly regulated and registered secure children`s homes, more and more applications are being made under the Courts Inherent Jurisdiction for children to be deprived of their liberty and placed in alternative, unregulated secure placements , when none of the other statutory mechanisms apply. 

An example would be when regulated secure homes, do not meet the needs of the individual child such as mental health problems or a child requiring specific therapeutic intervention and as such, alternate placements have to be taken into consideration.

Caution should be taken when a local authority makes an application under the inherent jurisdiction, as this should be the last resort whereby no alternative order could achieve the result being sought to prevent a child suffering from significant harm.

Most recently a report prepared by the Nuffield Family Justice Observatory raised significant concerns in relation to a high number of children being placed in unregulated placements. As a result, the president of the Family Law Division announced in July 2022 the launch of a National DOLs Court, which will be based at the Royal Courts of Justice.

All new DOLs applications wherever they are issued in the UK are now required to be issued at the new court. Upon completion of the first hearing, the judge has the jurisdiction to allow the proceedings to remain in the specialist court, or permit the proceedings to continue at a local court. 

In the case of T(A child) [2021] UKSC 35

– a matter in which Duncan Lewis Solicitors represented the appellant, the Supreme Court held that “ the use of inherent jurisdiction to authorise the deprivation of liberty in cases like the present is permissible, but expressed grave concern about its use to fill a gap in the child care system caused by inadequate resources.”

Court of Protection Applications

On occasion, a situation may occur whereby the child is due to turn 18, however circumstances are such that if they were to leave the placement  that they are residing within, they may  continue to fulfil the welfare criteria as set above and lack the required capacity to consent to the placement themselves. In circumstances such as this, the local authority may make an application via the Court of Protection for a Deprivation of Liberty Safeguard Order.

How can Duncan Lewis Solicitors assist?

Duncan Lewis Solicitors has specialist solicitors who represent parents, family members and children in applications made in this niche and specialist area of law.  Our solicitors, trainee and caseworkers speak around 60 languages between them, to assist clients where required.

How can the case be funded?

Duncan Lewis solicitors can provide legal aid depending on the type of application that has made. Our specialist solicitors are more than happy to assist making assessments for legal aid