Zenith Family Current Awareness

Deprivation of liberty and administration of medication by a local authority to a child

1 March 2018

Louise McCallum

"This article was first published on Lexis®PSL Local Government on 30 January 2018. Click for a free trial of Lexis®PSL."

Local Government analysis: Louise McCallum, barrister, and Emily Ross, pupil barrister, both of Zenith Chambers, Leeds, consider the case of T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication), which dealt with issues of deprivation of liberty and administration of medication by a local authority to a child.

Original news

T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) [2017] EWFC B1

What are the practical implications of this case?

This case concerned an application by a local authority for a care order and associated declarations under the inherent jurisdiction in respect of T, a 13-year-old boy with autistic spectrum disorder and a severe learning disability who was residing in a specialist residential unit (X Unit). In Re T, the local authority recognised, as all the parties agreed, that the care given to T at X unit amounted to a deprivation of his liberty within the meaning of P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another; P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council [2014] UKSC 19, [2014] All ER (D) 185 (Mar). Further, following the decision In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam) [2016] 1 WLR 1160, the local authority could not consent to that deprivation of liberty under an interim care order or care order. This case is therefore a useful example of a local authority recognising the need to seek permission for invocation of the inherent jurisdiction so as to obtain a declaration authorising deprivation of a child in care’s liberty.

Local authorities are increasingly making such applications in respect of children such as T who are subject to interim care orders or care orders and whose liberty is being deprived and who are not subject to secure accommodation. Care practitioners should look critically at the arrangements for children in public law cases and consider whether applications such as those in Re T are needed.

Recorder Howe QC helpfully analyses the authorities in relation to the limb of the section 31(2) Children Act 1989 (ChA  1989) statutory threshold concerning a child being beyond parental control. He concluded that this was a ‘no fault’ limb and it was immaterial why a child was beyond the control of a parent. On his analysis, there is therefore no need for a local authority to establish parental culpability as to why a child is beyond control.

The case has significant implications in relation to the powers available to a local authority under ChA 1989, s 33(3). An in-house psychiatrist had prescribed resperidone (an anti-psychotic drug) and melatonin to help T sleep. The drugs had not been administered for many months due to the mother opposing. The local authority considered that it could consent to the administration of medication pursuant to its parental responsibility under ChA 1989, s 33(3) and had therefore not sought a declaration. Recorder Howe QC disagreed with the local authority’s assessment of its powers under ChA 1989,  s 33(3). He determined that the administration of these medications, especially risperidone, involved such an interference with Article 8 of the European Convention on Human Rights (ECHR) for the mother, that any decision as to whether administration is to be started must be made by the court.

Local authorities should therefore carefully consider the implications of this decision for other children within their care and where there is a parental dispute in relation to administration of medication. Local authorities should no longer assume that they have the power to override a parent’s decision in relation to significant medication such as that in Re T, but instead that an application may be required to seek leave to invoke the court’s inherent jurisdiction and a declaration that medication can be administered. It will be interesting to see whether this aspect of the decision is the subject of any appeal.

What was the background?

The local authority’s care plan was that T continue to reside in X Unit subject to restrictions and that, if necessary, the prescribed medications be administered. The mother sought return of T to her care and in any event opposed the local authority plan. The matter was listed for final hearing in relation to the local authority’s application for a care order, their application for orders under the inherent jurisdiction, seeking authorisation for T’s deprivation of liberty (interim

authorisation previously granted) and a declaration that the MMR2 vaccine could be administered. The vaccine issue was subsequently agreed.

The issues before the court were:

  • whether the threshold criteria under ChA 1989, s 31(2) were satisfied
  • what impact did T’s impairment have on whether a court could find him beyond parental control (expert opinion was that it would be unlikely that any carer could meet his needs at home)
  • if the court needed to find that the lack of control was attributable to the parent
  • what outcome would best meet T’s needs for the rest of his minority—to remain in specialist residential care as per the local authority care plan or return to the mother
  • if a care order was made, whether the arrangements for T at X Unit amounted to deprivation of liberty and if so whether a declaration so authorising was required
  • in the event the mother sought declarations concerning his circumstances and steps that should be taken to promote his welfare, when should the court review the declaration, and
  • whether administrations of the anti-psychotic medication or melatonin were of such gravity that the local authority could not consent, given the mother’s active opposition—if so should the court grant a declaration pursuant to the inherent jurisdiction, giving authorisation

What did the court decide?

ChA 1989, s 31(2) statutory threshold

Recorder Howe QC accepted that T had suffered, and was likely to suffer significant harm, due to the destructive and self-harming behaviours exhibited by him both in the care of the mother and X Unit and a previous unit. Further to findings that the mother had failed to always accept and act on advice, ChA 1989, s 31(2)(b)(i) was satisfied.

As to ChA 1989, s 31(2)(b)(ii) and whether that harm arose from T being beyond parental control, Recorder Howe QC reflected on the conflicting decisions of HHJ Bellamy in Re K (Post-Adoption Placement Breakdown) [2013] 1 FLR 1, [2012] All ER (D) 74 (Aug) and HHJ Redgrave in Re P [2016] EWFC B2. These were at odds with the issue of whether lack of control had to be attributed to fault on the part of a parent. Recorder Howe QC considered the authorities of Re B (a Child) [2013] UKSC 33, [2013] All ER (D) 103 (Jun), Lancashire County Council v B [2000] 1 FLR 583, [2015] All ER  (D) 82 (Feb), and Re L (a Minor) [1997] EWCA Civ 1268 and concluded that the attribution of fault was not necessary. In his judgment para [89], Recorder Howe QC states:

‘...it is important to recognise that ChA 1989, s 31(1)(b)(ii) was intended to be a true “no fault” limb of the threshold criteria.’

A child could expose themselves to harm by reason of their own behaviour, whatever the cause for that behaviour, and the state needed to have the ability to intervene and protect.

Recorder Howe stated as follows para [90]:

‘In my judgment, it is immaterial whether a child is beyond parental control due to illness, impairment or for any other reason. The court simply has to consider if, on the facts, the child is beyond the control of the parent or carer. If that condition is satisfied, the court then has to determine if the child is suffering or is likely to suffer significant harm as a result of being beyond the control of the parent. If the answer to that second question is “yes”, then ChA 1989, s 31(2)(b)(ii) threshold is, in my judgment satisfied.’

Care plan

A care order was made based on the local authority’s care plan (to be amended following certain concessions in evidence). Recorder Howe QC accepted that due to T’s complex needs and development into adolescence, the demands of his care were such that services would be unlikely to be able to meet T’s needs in the community, even if his mother was able to cooperate with a package of support offered. The judge was satisfied that the making of a care order was a proportionate interference with the Article 8 of ECHR of both T and his mother and was the only order available that would protect T from suffering further harm.

Authorisation of the deprivation of T’s liberty

Recorder Howe QC was satisfied that the restrictions at X Unit were necessary to promote T’s welfare and protect him from harm. Recorder Howe QC made a declaration authorising the deprivation of T’s liberty at X Unit. The authorisation was limited to six months, subject to the potential for an earlier review.

Best interest declarations

Recorder Howe QC declined to make additional best interest declarations sought by the mother. Arrangements for his care (such as an agreement for visits in the community to commence) should properly be recorded in his care plan. Decisions needed to be left to those providing day-to-day care for T, with overall supervision by a very capable social worker.

Whether medication could be administered in exercise of the local authority’s over-arching parental responsibility

Recorder Howe QC considered ChA 1989, s 33(3), (4), (6) and (7). Recorder Howe QC analysed the immunisation authorities of Macdonald J in Re SL (Permission to Vaccinate [2017] EWHC 125 (Fam)[2017] All ER (D) 75 (Feb) and Re A , B , C and D (Welfare of Children : Immunisation[2011] EWHC 4033 (Fam) together with a decision regarding a local authority seeking to prevent a parent registering children with particular forenames (C (Children[2016] EWCA Civ  374, [2017] 1 FLR 487).

Recorder Howe QC concluded that the local authority, contrary to their submissions, did require the authorisation of the court for risperidone and melatonin to be administered to T. He found this for the following reasons para [180]:

  • each drug, while commonly used with autistic children, has recognised and serious side effects, and
  • T’s impairments were such that he was satisfied that T would have more difficulty in expressing that he was suffering side effects, were they to arise

If the administration of vaccinations and the change of a child’s first name are such serious interferences with the Article 8 rights of a parent, so as to require an order under the inherent jurisdiction of the High Court to override the will of a parent, however unreasonable that parent may appear to be, it would be a nonsense for the reasonable concerns of the mother not to be of sufficient gravity to justify similar protections.

Interviewed by Alex Heshmaty.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Current Awareness

By the Family team