Child Care Solicitors

A rise in cases of children being placed in unregulated placements has resulted in the creation of national Deprivation of Liberty Orders (DoLs) court.

The new court received 237 applications in July and August to authorise the deprivation of liberty of a child or young person, but what is a DoLs application and when is it appropriate?

WHAT IS IT?

Article 5 of the European Convention of Human Rights (ECHR) defines “the right to Liberty”, as the fundamental right of every individual whatever their age (the power to do as they please).

The ECHR was included into national law by the Human Rights Act (HRA) 1998.

Applications can then be made 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 and is subject to strict provisions set out in Article 5.

This happens if:

• The person lacks the mental ability to make decisions on their living and care arrangements



• They need to be under continuous supervision so that they are at reduced risk of harm

RELEVANT CASELAW

Storck v Germany [2005] 43 EHRR 96

The above case 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

KEY ELEMENTS OF THE DEPRIVATION OF LIBERTY SAFEGUARDS

A deprivation of liberty order will not be used every time someone is admitted to a hospital or care home if they lack capacity to decide whether to be admitted.
DOLS APPLICATIONS IN THE FAMILY COURT

DOLs applications made in the family court focus on protecting a child. They should only be made if they are the least restrictive way of keeping the child safe or ensuring someone gets the right medical treatment or care.

For example, the child may need to be kept away from places or situations where their safety could be at risk, such as railway lines or busy roads. Or, the child may be given medical treatment in their best interests and without being able to consent to it.

Before a child can be lawfully deprived of their liberty, the care home or hospital where they are staying must get permission from the relevant authority (which would be a local authority, or if they are in hospital in Wales it can also be a local Health Board or the National Assembly). This is called applying for an authorisation.

Before the deprivation of liberty is authorised, the child will have six assessments, which may take place at the same time. A child cannot have their liberty taken away unless all the six assessments are met.
WHEN SHOULD THE APPLICATION BE MADE?

There are far more applications 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. This is because there is a shortage of children’s homes.

In light of the above, caution should always be taken when a local authority makes an application. This is because an application should only be made when all other options have been exhausted. The application should be made with the sole intention to prevent the child from suffering 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, based at the Royal Courts of Justice.

HOW ARE THEY ISSUED?

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.

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 as this, the local authority may make an application via the Court of Protection for a Deprivation of Liberty Safeguard Order.

HOW CAN WE HELP?

We have specialist solicitors who represent parents, family members and children in applications that are made in this area of law. We are one of the largest legal aid providers in the UK and provide legal aid to cases such as these. This means you would have representation and would not need to cover the costs.

Our specialist solicitors are more than happy for contact to be made with them to assist with undertaking eligibility assessments for legal aid.

About the author: Phoebe Holdstock is a caseworker in the child care department at Duncan Lewis Solicitors, who supports the team in the full range of matters.

Phoebe Holdstock works under Emine Mehmet, who is a widely respected director of family and childcare law at Duncan Lewis Solicitors, recommended as a specialist for her work by the independent legal directory, The Legal 500 UK and ranked in Chambers and Partners UK.

Her caseload case comprises a broad range of privately and publicly funded (legal aid) family and childcare matters, such as acting for parents and children, whether through their guardians or direct, and parents, in care proceedings, private law children disputes and domestic abuse matters.

For advice in any family or childcare matter contact:

Phoebe via email PhoebeH@duncanlewis.com or via telephone on 020 7923 8547.

Contact href="https://www.duncanlewis.co.uk/Emine-Mehmet-Child-Care-Solicitor-Dalston-/"_blank">Emine Mehmet via email at emineme@duncanlewis.com or via telephone on 020 7275 2799.
or via telephone on 020 7275 2799.