The deprivation of liberty act safeguarding.

Launch of National Deprivation of Liberty (DoLs) Court at the Royal Courts of Justice – 4 July 2022

22 June 2022 |Family Court|President of the Family Division

The President of the Family Division today announces the launch of a National DoLs (Deprivation of Liberty) court on 4 July 2022. The court will deal with applications seeking authorisation to deprive children of their liberty and will be based at the Royal Courts of Justice under the leadership of Mr Justice Moor.

From 4 July 2022, all new applications seeking these orders will be issued in the Royal Courts of Justice (RCJ).

The new court will be supported by two Family High Court/deputy high court judges each week and a dedicated administrative team based in the RCJ. Cases will either be retained for hearing within the National DoLs Court or will be returned to circuit, based on agreed criteria.

It is anticipated that, subject to judicial direction, cases will be heard remotely.

Sir Andrew McFarlane, President of the Family Division said:

‘This is important, sensitive work and the continued growth in the number of these applications to the family courts requires the creation of a dedicated listing protocol. The national DoLs court will provide the necessary expertise in dealing with these matters. I am grateful to Lisa Harker and the Nuffield Family Justice Observatory who have kindly agreed to conduct research which will enhance our understanding of the nature of this work.’

The data will be published regularly on the Nuffield Family Justice Observatory website (external link, opens in a new tab).

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Care vs control: the Mental Capacity Act and deprivation of liberty

In a time where our Human Rights are being politicised and reviewed there are far reaching consequences of any changes. An example of this is its application to those who suffer mental health issues. Article 5 of the Human Rights Act states that ‘everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty [unless] in accordance with a procedure prescribed in law’. But what happens if a person is a danger to themselves or others? How can society ensure we honour their human rights whilst protecting them from harm?

We recently had an enquiry from a member about the Mental Capacity Act. They wanted to understand how the act and, specifically, the deprivation of liberty safeguards would affect their service users. Taking away someone’s right to liberty is a very real dilemma facing service providers who are dealing with safeguarding decisions at the sacrifice of a human right. These safeguards have been put in place to help deal with that situation, give clear guidance and ensure that liberty is protected.

The Social Care Institute for Excellence presents the following key messages in relation to the safeguards:

  • The Deprivation of Liberty Safeguards are an amendment to the Mental Capacity Act 2005. They apply in England and Wales only.

  • The Mental Capacity Act allows restraint and restrictions to be used – but only if they are in a person’s best interests.

  • Extra safeguards are needed if the restrictions and restraint used will deprive a person of their liberty. These are called the Deprivation of Liberty Safeguards.

  • The Deprivation of Liberty Safeguards can only be used if the person will be deprived of their liberty in a care home or hospital. In other settings the Court of Protection can authorise a deprivation of liberty.

  • Care homes or hospitals must ask a local authority if they can deprive a person of their liberty. This is called requesting a standard authorisation.

  • There are six assessments which have to take place before a standard authorisation can be given.

  • If a standard authorisation is given, one key safeguard is that the person has someone appointed with legal powers to represent them. This is called the relevant person’s representative and will usually be a family member or friend.

  • Other safeguards include rights to challenge authorisations in the Court of Protection, and access to Independent Mental Capacity Advocates (IMCAs).

We found that most of the published research into the Mental Capacity Act so far has, in fact, concentrated on the impact it has had in terms of issues around capacity to consent, through the Deprivation of Liberty Safeguards introduced as part of the Act.

In March 2014 the Supreme Court identified an ‘acid test’ to understand whether people were being deprived of their liberty. This, and the quantity of research being developed around this area, highlights the difficulty in ensuring that our liberties are safeguarded: each case must be individually assessed and an informed decision made, which make the safeguards vital in the appropriate treatment of vulnerable individuals.

The results of our research for our member highlighted the use of case studies in this area, especially those which highlight best practice and the individual approach. Research looked at the impact of the MCA on service users in general terms, as well as on particular groups, including people with learning disabilities, those living in residential care, and young people. After reviewing the evidence, some of the most appropriate examples we shared with our member included:

The Idox Information Service can give you access to further information on act and provides a range of resources for social services departments, more information can be found on a website here.

To access services such as ask a researcher or find out more on how to become a member click here.

Consent, Mental Capacity and Deprivation of Liberty Safeguards (DoLS)

Working in partnership with patients and those who use our services, including their families and carers, is important to us. Without your cooperation, support, understanding and agreement, it would be very difficult for us to provide safe and effective care.

As your community healthcare provider, we are required to ensure that suitable arrangements are in place for obtaining and acting in accordance with the consent of people who use our services. We are also required to ensure that our staff fully adhere to and work within the law that relates to mental capacity and the deprivation of liberty.  

The following information and resources has been put together to help you think through and consider these important issues.

Consent

What is consent?

Consent to treatment is the principle that a person must give their permission before they receive any type of examination, treatment or therapy. The principle of consent is an important part of healthcare ethics, clinical practice and human rights law. 

It is important that patients and people who use our services are fully aware of what they are agreeing to. This means that you have agreed (said yes), to the examination, treatment, or therapy that is offered or being proposed.   

Mental Capacity Act (MCA)

What is mental capacity?

Having mental capacity means that a person is able to make their own decisions. The law states that a person is unable to make a particular decision if they cannot do one or more of the following: 

  • Understand information given to them

  • Retain that information long enough to be able to make the decision

  • Weigh up the information available

  • Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand

The Mental Capacity Act (MCA) is specifically designed to cover situations where someone is unable to make a decision because the way their mind or brain works is affected, for instance, by illness or disability, or the effects of drugs or alcohol.

A lack of capacity could be due to: 

  • A stroke or brain injury

  • A mental health problem

  • Dementia

  • A learning disability

  • Substance misuse

  • Confusion, drowsiness or unconsciousness

Watch this training film, which explains about the Mental Capacity Act and consent to treatment

Mental Capacity Act Template Letters 

Ensuring that all professionals act in accordance with their obligations under the Mental Capacity Act 2005 towards disabled adults This leaflet has been produced by Ambitious about Autism, Mencap and the Challenging Behaviour Foundation in partnership with Irwin Mitchell Solicitors. We are regularly contacted by individuals who feel that they are not being appropriately consulted about the welfare of their loved ones. For example, many parents phone to voice concern about decisions that social care or health professionals have made about their adult son or daughter, which they have not been involved in at all. Broadly speaking, if an individual lacks the mental capacity to make a decision for themselves, that decision must then be made in their best interests in accordance with the requirements of the Mental Capacity Act 2005. Examples of relevant decisions can include those around: • where the individual lives • what care is received • contact with others • medical treatment. Importantly, the Mental Capacity Act requires all professionals, including those from local authorities and the NHS, to consult with family members when an adult lacks the mental capacity to make the relevant decision themselves.

We have prepared this leaflet in order to increase understanding of people’s rights to be involved in ‘best interest’ decisions taken in accordance with the Mental Capacity Act.¹

¹ The rest of this guide refers to ‘family members’ for ease of reference, but in fact (as can be seen from the attached letters) the Act refers to anyone engaged in caring for the person or interested in his/her welfare.

1 Key points

• Family members retain their rights to be consulted when their relative is over the age of 18.

• Family members have a right to be consulted and do not need to be appointed as welfare deputies first.

• It is not the case that family members only need to be consulted when it is an important decision. Any decision made on behalf of a person who lacks capacity must be made in their best interests, and this requires consulting with family members before the decision is made. The two template letters contained within this leaflet are intended to help family members who have not been involved, or are concerned that they will not be involved, in the best interests decision-making process. They have been written by Alex Rook in the public law department at Irwin Mitchell Solicitors, a nationwide law firm specialising in cases involving the Mental Capacity Act. It should however be noted that this article and the template letters are a general guide and do not replace the need for legal advice on a specific case.

Template letter 1 is intended to be used when family members are concerned that they may not, in the future, be involved in best interests decisions in relation to their loved ones. It clearly sets out the legal requirement to involve them.

Template letter 2 is intended to be used when decisions have already been taken without family members’ involvement. All the text in square brackets should be replaced with individual details.

The letters should be sent, by fax or email and post if possible, to the manager of the adult social care team and also to the individual’s social worker (if there is one) and/or the relevant health professional involved at the NHS trust.

Check with the council and/or NHS trust website or their telephone information line to find the relevant names and addresses.

The first step for family members is always to seek a best interests meeting and to try to work with the council and/or NHS to resolve the dispute.

If there is no response to a letter based on the templates provided, or if agreement about an individual’s best interests cannot be reached, it may be necessary for the dispute to be resolved in the Court of Protection. Before doing so, it is advised that family members take specialist legal advice.

2 Further information and advice For general support and advice about learning disability

: Mencap Learning Disability Helpline Email: help@mencap.org.uk

Call: 0808 808 1111

Go to: www.mencap.org.uk For information about supporting individuals with a severe learning disability and behaviour described as challenging:

Challenging Behaviour Foundation Email: support@thecbf.org.uk

Call: 0845 602 7885

Go to: www.challengingbehaviour.org.uk

For information about autism:

Ambitious about Autism Email: info@ambitiousaboutautism.org.uk

Call: 020 8815 5444

Go to: www.ambitiousaboutautism.org.uk

For specialist legal advice: Alex Rook, Irwin Mitchell LLP

Email: publiclawnewenquiries@irwinmitchell.com

Call: 0870 100 500

Go to: www.irwinmitchell.com

Or go to: http://www.lawsociety.org.uk/choosingandusing/findasolicitor/ action=lawfirmsearch.law and search under ‘Mental health and incapacity law’.

This pdf document and Word versions of the two letters can be downloaded from www.irwinmitchell.com/MCAletter

3 Template letter 1

YOUR NAME

YOUR ADDRESS

DATE

Dear [NAME] I am writing to you in respect of my [son/daughter/brother/sister/family friend, etc]. He/ she [insert here a summary of their disabilities], and as a result lacks the capacity to make decisions concerning his/her welfare [be more specific if there is a particular issue of concern, eg where they live, medical treatment decisions, contact with others, etc]. As you will be aware, the Mental Capacity Act 2005 (MCA) governs the process for decision-making in someone’s best interests where they lack the mental capacity to make that decision themselves. The Act says that when a person lacks capacity to make a decision themselves, a decision must be made in their best interests. If there is a dispute over mental capacity, the MCA and its code of practice also govern the process by which that dispute should be resolved. While the term ‘best interests’ is not defined by the MCA, section 4 of the Act provides a list of some of the matters that should be taken into account when considering what is in an individual’s best interests. The code of practice to the MCA provides detailed guidance on what should be considered, and the steps that should be taken, when considering best interests. In particular, I would like to draw your attention to the requirement that a best interests decision must take account of all the relevant circumstances and, in particular, should include the following steps:

1. Encourage [insert name] to participate as fully as possible in the decision-making process.

2. Consider [insert name]’s past and present wishes and feelings and the beliefs and values that would be likely to influence his/her decision if he/she had capacity. [Insert specifics here if relevant, eg your cultural or religious background].

3. Consider the views of anyone engaged in caring for the person or interested in his/her welfare. Clearly this would involve me as [insert name]’s [insert relationship]. Steps need to be taken to properly consult. This does mean that both [insert name] and I should be fully involved when any decision is being made on his/her behalf. Involving [insert name] will mean taking practical steps to assist him/her in communicating his/her wishes or preferences, for example [explain how they might do this, eg by using simple language or pictures]. [Insert name] may need help to express his/her wishes or preferences, so you may need to involve someone who knows him/her well – such as me – in this.

4 Template letter 1 – continued In addition, you need to consult with me and anyone else interested in [insert name]’s welfare, to get our views. I do not need to be appointed a ‘welfare deputy’ in order to be consulted. I have written this letter using a guide that has been published by Ambitious about Autism, Mencap and the Challenging Behaviour Foundation. The guide was based on legal advice. I would therefore be grateful if you would contact me on [insert your contact details] so we can work together to ensure that all decisions regarding [insert name]’s welfare are taken in his/her best interest. I have copied this letter to [insert name of LA/NHS body/care manager, etc]. I look forward to hearing from you shortly.

Yours sincerely [Print name]

5 YOUR NAME

YOUR ADDRESS

DATE

Dear [NAME] I am writing to you in respect of my [son/daughter/brother/sister/family friend, etc]. He/ she [insert here a summary of their disabilities], and as a result lacks the capacity to make decisions concerning his/her welfare [be more specific if there is a particular issue of concern, eg where they live, medical treatment decisions, contact with others, etc]. I understand that [insert here the issue of concern, eg a best interests decision was taken in relation to my son that his medication is changed, but I was not consulted about this before the decision was reached] As you will be aware, the Mental Capacity Act 2005 (MCA) governs the process for decision-making in someone’s best interests where they lack the mental capacity to make that decision themselves. The Act says that when a person lacks capacity to make a decision themselves, a decision must be made in their best interests. If there is a dispute over mental capacity, the MCA and its code of practice also govern the process by which that dispute should be resolved. While the term ‘best interests’ is not defined by the MCA, section 4 of the Act provides a list of some of the matters that should be taken into account when considering what is in an individual’s best interests. The code of practice to the MCA provides detailed guidance on what should be considered, and the steps that should be taken, when considering best interests. In particular, I would like to draw your attention to the requirement that a best interests decision must take account of all the relevant circumstances and, in particular, should include the following steps:

1. Encourage [insert name] to participate as fully as possible in the decision-making process.

2. Consider [insert name]’s past and present wishes and feelings and the beliefs and values that would be likely to influence his/her decision if he/she had capacity. [Insert specifics here if relevant, eg your cultural or religious background].

3. Consider the views of anyone engaged in caring for the person or interested in his/her welfare. Steps need to be taken to properly consult. Clearly this decision should have involved me as [insert name]’s [insert relationship], and I would like to draw to your attention the comments of Mr Justice Hedley in the case Re P [2010] EWHC 1592 (Fam): Template letter 2 6 Template letter 2 – continued “... in a society structured as is ours, it is not the State whether through the agency of an authority or the Court, which is primarily responsible for individuals who are subject or citizens of the State. It is for those who naturally have their care and well being at heart, that is to say members of the family, where they are willing and able to do so, to take first place in the care and upbringing, not only of children, but of those whose needs, because of disability, extend far into adulthood. It seems to me at least that the Act ought to be read subject to that overriding policy aim.” This does mean that both [insert name] and I should be fully involved when any decision is being made on his/her behalf. Involving [insert name] will mean taking practical steps to assist him/her in communicating his/her wishes or preferences, for example [explain how they might do this, eg by using simple language or pictures]. [Insert name] may need help to express his/her wishes or preferences, so you may need to involve someone who knows him/her well – such as me – in this. In addition, you must consult with me and anyone else interested in [insert name]’s welfare to get our views. I do not need to be appointed a ‘welfare deputy’ in order to be consulted. I have written this letter using a guide that has been published by Ambitious about Autism, Mencap and the Challenging Behaviour Foundation. The guide was based on legal advice. I hope you will confirm that the council will now act in accordance with its obligations under the MCA in relation to [insert name], but if you do not I will have to consider taking the matter further. I would therefore be grateful if you would contact me on [insert your contact details] to arrange a best interests meeting so we can work together to ensure that this immediate issue and any future decisions regarding [insert name]’s welfare are taken in his/her best interest in accordance with the MCA. Given the urgency of this matter, I would be grateful if you would contact me as soon as possible. I look forward to hearing from you shortly. I have copied this letter to [insert name of LA/NHS/care manager, etc].

Yours sincerely

[Print name]


Decisions covered by the Mental Capacity Act:

Decisions that are covered by the MCA can range from day to day decisions such as what to wear or eat, through to more serious decisions about where to live, having an operation or what to do with a person’s finances and property 

Decision not covered by the Mental Capacity Act:

Some types of decisions (such as marriage or civil partnership, divorce, sexual relationships, adoption and voting) can never be made by another person on behalf of a person who lacks capacity. This is because these decisions or actions are either so personal to the individual concerned, or because other laws govern them and the Mental Capacity Act does not change this.  

If the circumstances arise as to whether an individual has the capacity to consent to a particular treatment, therapy or intervention, then our staff will work with that individual, their family, carer, advocate and others in addressing the specific issues in partnership to move the situation forward.    

 

Deprivation of Liberty Safeguards (DoLS)

What are Deprivation of Liberty Safeguards (DoLS)? 

Deprivation of Liberty Safeguards (DoLS) provides protection for vulnerable people who are accommodated in hospitals or care homes in circumstances that amount to a deprivation of their liberty and who lack the capacity to consent to the care or treatment they need.  

It is anticipated that the majority of people who will require the protection of the DoLS are those people with more severe learning disabilities, older people with any of the range of dementias or people with neurological conditions such as brain injuries.

The DoLS state that deprivation of liberty:

  • Should be avoided whenever possible

  • Should only be authorised in cases where it is in the relevant person’s best interests and the only way to keep them safe

  • Should be only for a particular treatment plan or course of action

  • Should be for as short a time as possible

If the circumstances arise when a deprivation of liberty is required, then the trust will work with its local authority partners in addressing this.   

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 [2016] 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:

  • Leadership

  • Systems, assessments and planning

  • Record keeping

  • Commissioning.

Related resources

References

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

The Application of Deprivation of Liberty Safeguards (DoLs) in Children’s Services Summary This briefing is on the application of Deprivation of Liberty Safeguards (DoLs) in the care of children. It highlights a recent case which illuminates what a deprivation of liberty would be for a looked after child in residential or foster care and who and in what circumstances can they consent to a deprivation of liberty for a child. It makes clear that where a child is on an interim care order of care order a local authority cannot consent to a deprivation of liberty and that where a child is accommodated under s20 of the Children Act 1989 whether parents can consent will depend on the particular circumstances of the case. Where parents cannot consent to deprivation of liberty the local authority will have to seek leave from the high Court for the Court to exercise its inherent jurisdiction in order to lawfully deprive a child of their liberty. Detail On 19th November 2015 Community Care reported on a recent bulletin from a leading mental capacity law firm 39 Essex Chambers which followed the case of a 14 year old boy where a Judge authorised the deprivation of the child’s liberty within the current placement using the inherent jurisdiction powers of the high court. The bulletin from 39 Essex Chambers can be accessed at (http://www.39essex.com/content/wpcontent/uploads/2015/11/MC-Newsletter-November-2015-HWDOL.pdf?utm_source=Newsletters &utm_campaign=c07a0c5aea-MCL+Nov+2015&utm_medium=email&utm_term=0_0dd23690b2- c07a0c5aea-47207585). DoLs was introduced in April 2009 as part of the implementation of the Mental Capacity Act 2005 (MCA). The aim of DoLs and the related legislation and guidance is to ensure that there is better legal and administrative protection for all those who may for whatever reason lack capacity to consent to the care they are receiving including where they live and how they are cared for on a day to day basis. Prior to the MCA there was a lack of clarity about how the liberty and human rights of those lacking capacity to consent to their care arrangements, including where these restricted their movement and choices, should be protected. The bulk of people whom the act was intended to help had serious disabilities including those arising from dementia, learning disabilities and serious mental health problems. Briefing January 2016 165 tri.x is part of the Signis Group, which also includes PRICE Training (Positive approaches to challenging behaviour) and Reconstruct (Training, consultancy and direct work). As a group we provide those working with children and vulnerable people with the best information, practice guidance, training and consulting available. At the time of the implementation of the DoLs provisions there was little consideration of whether and how the provisions might apply to children. A code of practice was issued for what was always going to be a complex and sensitive area of practice. Since implementation practice and case law has been developing. For adult services the implementation has become increasingly demanding and complex as case law has extended the people who need DoLs assessments and related legal processes. A key judgment was in what is called the Cheshire West and Chester case which greatly expanded the scope of what deprivation of liberty meant. Baroness Hale said in her judgment in this case: “If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.” The Supreme Court said that disabled people should not face a tougher standard for being deprived of their liberty than non-disabled people. There have been extensive discussions and reviews of the implementation of DoLs and proposals made for reform but there is no consensus on the best way forward. There has been limited discussion of DoLs and how it may apply to children. The case reported by Community Care makes clear that social workers and local authorities need to consider whether DoLs applies to children in care or cared for away from home in other settings. The particular case concerned a 14 year old boy (AB) who was residing in a children’s home under an interim care order. He had previously been accommodated under s20 of the children act 1989. He had moderate to severe learning disability, Attention Deficit Hyperactivity Disorder, a statement of special educational needs and was under the care of child and adolescent mental health services. He was happy, settled and wished to remain in the children’s home but lacked capacity to make the decision. His care regime provided for the following:  There were three staff members on duty during the day, and two at night, for the three child residents;  AB was not on one-to-one supervision within the unit and could be left unsupervised for short periods. But his behaviour plan stated: “Staff must be aware of where AB is at all times. AB should be checked regularly. Staff must be authorised to work alone with AB. AB must never be left alone with another resident.” He was under 15-minute observations.  Took medication for ADHD under supervision;  He was not allowed to leave the unit (e.g. to go to school) unaccompanied and was closely supervised when out of the unit; tri.x is part of the Signis Group, which also includes PRICE Training (Positive approaches to challenging behaviour) and Reconstruct (Training, consultancy and direct work). As a group we provide those working with children and vulnerable people with the best information, practice guidance, training and consulting available.  He was only taken on public transport if calm and settled, with a staff member sat beside or behind him;  If he behaved negatively when out and, despite warnings, he continued, he would be immediately returned to the placement;  If he were to leave the placement unaccompanied, staff would call social services and the police to assist with his return;  The front door was locked at night and if he left his room, staff must redirect him back unless he wanted a drink or the toilet. The judge agreed with the parties that, applying the criteria from the Cheshire West case, the circumstances amounted to continuous supervision and control and he was not free to leave. He was deprived of his liberty. While this care plan is restrictive it is easy to imagine that other children with similar needs or who have one to one supervision because of the risk of absconding, self-harming behaviour or risk of exploitation may have similarly restrictive regimes and where their degree of consent is at least ambivalent or is not actively given or there is uncertainty about capacity to give consent. Having agreed in this case that there was deprivation of liberty the case then focused on whether there was valid consent from those with parental responsibility. The full argument is set out in the briefing form Essex Chambers referenced above. The core of the judgment is: (1) “Local authorities are under a duty to consider whether any children in need, or lookedafter children, are, especially those in foster care or in a residential placement, subject to restrictions amounting to a deprivation of liberty; (2) The Cheshire West criteria must be rigorously applied to the individual circumstances of each case; (3) The comparison to be made is not with another child of the same age placed in foster care or in a residential home, but simply with another child of the same age; (4) A deprivation of liberty will be lawful if warranted under statute; for example, under s.25 of the Children Act 1989 or the Mental Health Act 1983 or under the remand provisions of LASPO 2012 or if a child has received a custodial sentence under the PCCSA 2000; (5) Where a child is not looked after, then an apparent deprivation of liberty may not in fact be a deprivation at all if it falls within the zone of parental responsibility exercised by his parents (see Re D). The exercise of parental responsibility may amount to a valid consent, with the consequence that the second limb of Cheshire West is not met. In those circumstances, the court will not need to make any declaration as to the lawfulness of the child's deprivation of liberty; (6) Where a child is a looked-after child, different considerations may apply, regardless of whether the parents consent to the deprivation of liberty; (7) Where a child is the subject of an interim care order or a care order, it is extremely unlikely that a parent could consent to what would otherwise amount to a deprivation of liberty. In those circumstances, a local authority cannot consent to a deprivation of liberty; tri.x is part of the Signis Group, which also includes PRICE Training (Positive approaches to challenging behaviour) and Reconstruct (Training, consultancy and direct work). As a group we provide those working with children and vulnerable people with the best information, practice guidance, training and consulting available. (8) The local authority must first consider whether s.25 of the Children Act is applicable or appropriate in the circumstances of the individual case. This will require an analysis of: (1) Whether any of the regulations disapply s.25; (2) Whether the intended placement is accommodation provided for the purposes of restricting liberty and, thus, secure accommodation within s.25; and (3) Whether the test set out in s.25.1(a) or (b) is met. (9) If it is not, then the s.100(4) leave hurdle is likely to be crossed on the basis that any unlawful deprivation of liberty is likely to constitute significant harm; (10) Irrespective of the means by which the court authorises the deprivation of a child's liberty, whether under s.25 or the inherent jurisdiction, the local authority should cease to impose such deprivation as soon as (1) the s.25 criteria are not met, or (2) the reasons justifying the deprivation of liberty no longer subsist. Authorisation is permissive and not prescriptive.” What this amounts to is that parents can give consent for deprivation of liberty if it falls within the zone of parental responsibility. Deprivation of liberty can also be lawful if warranted under statute i.e. s25 of the children act, secure accommodation provisions. However where a child is looked after then different considerations apply even where the parents’ consent to deprivation of liberty. Their consent may be adequate where the child is accommodated under s 20 but where the child is the subject of an interim care order or care order it is unlikely a parent could consent and nor can the local authority. This means that where there is a deprivation of liberty the local authority must either use a statutory route, not likely to be appropriate or to meet the secure accommodation criteria in the kind of case described above, or seek leave of the high court to invoke its inherent jurisdiction to make an order for deprivation of the child’s liberty as it did in the case referred to above. In conclusion this judgment makes clear that if a child or young person is under an interim care order or care order and satisfies the test for deprivation of liberty i.e. the restrictions on the child are greater than those appropriate for a child of the same age and relative maturity who does not have a disability. This is a difficult and nuanced judgement about what are reasonable and age appropriate restrictions. The judgment also makes clear that local authorities are under a duty to consider whether any children in need or looked after are subject to restrictions amounting to deprivation of liberty. We can expect further developments in case law.