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Child Care Solicitors

Duncan Lewis reported case cited in Children Commissioner’s report (22 May 2019)

Date: 22/05/2019
Duncan Lewis, Child Care Solicitors, Duncan Lewis reported case cited in Children Commissioner’s report

A Duncan Lewis reported case has been cited in the recently published report by the Children’s Commissioner, Anne Longfield. The report, ‘Who are they? Where are they?’ looks into vulnerable children who are ‘locked up’ be it in secure children’s homes, mental health wards, Young Offender Institutions or secure training centres, either for their own safety or the safety of others.

In our case, T (A Child) [2018] EWCA Civ 2136, director Emine Mehmet represented , a transgender teenager for whom an order had been made depriving her of her liberty (Deprivation of Liberty Safeguards (DOLS) order) by the local authority in whose favour there is a care order. The child had been held in numerous placements which had imposed restrictions on her liberty. The local authority believed that they had the power to restrict T – who had a history of absconding from secure accommodation – this was appealed on the basis that T consented to her restrictions making the DOLS order unnecessary.

The focus of the appeal was whether the judge was right to consider whether T was ‘authentically’ consenting to the proposed care regime and restrictive arrangements, as the judge had considered that consent must be deemed ‘authentic’ or ‘enduring’ in order for it to be valid for the purposes of Article 5 of the European Convention on Human Rights (ECHR). Ultimately concluding that consent cannot be fleeting and must be enduring.

Although the appeal was unsuccessful, the case has been considered to be a matter of great importance, firstly due to it being the first time that the Court of Appeal has looked at the right of consent within Article 5 of the ECHR, and secondly given the lack of secure accommodation placements in the UK, local authorities have to use DOLS applications more frequently, when ordinarily an application for a secure accommodation order would be made. Emine has now made and application for legal aid, to appeal to the Supreme Court.

Such importance was given to this matter that the bench ordered the judgment be sent to the Secretary of State for Education, the Chair of the Education Select Committee, the Chair of the Justice Select Committee, the Welsh Government and the Children Commissioner in order to address the issue.

Anne Longfield’s report looks into children who are locked up and features an in-depth insight into ‘invisible children’ those whose legal basis for their detention is unclear and their location unknown. Our case is cited in the section concerning deprivation of liberty through the courts, where concerns are raised into local authorities having to seek deprivation of liberty authorisation from the high court in order to place children in settings that are not the most appropriate places for them.

Emine commented on the case’s inclusion in the report.

“The use of DOLS to place children in unregulated and unapproved children’s homes was a concern highlighted in the Judgement of Re T. Such was the concern of Sir Andrew Mcfarlane, the president of the family division, that he directed a copy of the judgement to be served on the children’s commissioner. The report now published by the children’s commissioner only seeks to compound concerns around this area of the law and highlights the need for change in order to protect our most vulnerable and troubled children.”

The report recommends that the Department for Education, Ministry of Justice, and Department for Health and Social Care should set up a joint working group to better understand children in secure settings. It is encouraging to know that our case has been considered by the Children’s Commissioner and that it, hopefully, will play a role in bringing about change in order to better protect vulnerable children in similar situations as our client.

Child care director Emine Mehmet is committed to representing some of the most vulnerable clients through her work, with a particular focus on children matters. She has significant experience in all aspects of childcare and family law, including care proceedings, international children matters, and private law children disputes. A member of The Law Society Child Law Panel, Emine has significant care proceedings practice as well as a cross border practice in Hague Convention proceedings. She is an effective advocate and always strives to ensure that the child’s voice is heard when representing children.


For more information on this topic please contact child care director Emine Mehmet on 020 7275 2799 or email emineme@duncanlewis.com.


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