Reported Case

The case concerns T, a transgender child and the deprivation of liberty and rights under Article 5 of the European Convention on Human Rights. If the state imposes restrictions upon the child’s freedom and movement without the Child’s consent, there is interference under Article 5 of the European Convention of Human Rights.

History

The child has been deprived of her liberty by the local authority in whose favour there is a care order. The child has been held in a number of placements which had imposed resections upon her liberty. The Local Authority believed they had the power to restrict T, who had a history of absconding from secure accommodation. Due to the Child’s previous involvement of being involved in ‘disturbing and concerning’ incidents, the court must weight what is in the Child’s best interests against the deprivation of liberty.

The child’s liberty was severely restricted; she was not allowed to leave the secure accommodation, the doors and windows were locked, no money was allowed to be kept and no access to a mobile phone was allowed as well as being subjected to frequent checks throughout the day and night. However, these orders were approved by the courts as being in her best interest and necessary to safeguard her wellbeing.

Since the previous hearing, the child began to self-harm and was admitted to hospital and was reported missing after leaving her placement. T moved to a new placement and it was reported that T consented to this placement. The child was objectively confined and not in any realistic sense able to leave freely. The fundamental issue was whether the child authentically gave her consent.

Judgement

The Judge’s decision was weighed with careful consideration of the current statutory law and having to weigh up the prevention of deprivation of liberty of the child’s rights. The deprivation of liberty for the child due to the lack of secure accommodation led to the Court’s findings that as the child themselves consented to arrangements, there is no need for authorisation under the jurisdiction as it is done by consent.

Mr Justice Mostyn demonstrated that consent in the form of a child consenting to this restriction on her own liberty must be a consent which is understood by the child fully and can be sustained for a period of time. This is a turning point in the previous case law as consent was never to be restricted to a period of time.

The Judgement was made in the child’s best interest and therefore without the Judge’s order the Local Authority does not have the power to place the child, consequently the Local Authority requires authority from the court to make a new placement. Mostyn J therefore discharged the order authorising T's detention at their previous placement and replaced it with a fresh order authorising their detention at the new placement. The child was granted permission to appeal both judgements by Peter Jackson LJ, in the Court of Appeal.

This case is noteworthy as it will be the first time that the Court of Appeal has looked at the right of consent within Article 5 of the European Convention on Human Rights.

Emine Mehmet, is instructed by the third respondent, T in this case. Emine has extensive experience in all aspects of childcare and family law, but specialises in international children public law & cross border matters. She is a member of the Law Society Child Law Panel and has a significant cross border practice in Hague Convention proceedings (child abduction), inherent jurisdiction disputes and international relocation cases.

For expert advice on Family and Child Care matters, please contact Emine on 020 7275 2799 or email her at emineme@duncanlewis.com.

Find full details of this case on Bailii’s website here.