FD25C40107 - [2025] EWHC 1264 (Fam)

The third issue is whether the Local Authority have properly provided evidence which brings the case within any of the sub-paragraphs of article 5(1) of the Convention. The relevant parts of article 5 provide:

““Right to liberty and security

(1)

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(d)

the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; …

(4)

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

There are a series of preliminary points which I should set out before focusing on the article 5 issues. First, the fact that the local authority have parental responsibility as a result of the care order does not, of itself, entitle the Local Authority to authorise the placement provider to impose restrictions on LB’s movements if those restrictions amount to a deprivation of her liberty. That applies even though LB is not yet 16 years old, as was recently confirmed by the Court of Appeal in J v Bath and North East Somerset Council & Ors [2025] EWCA Civ 478. Secondly, the Local Authority is entitled to apply to the High Court to authorise the deprivation of liberty but it must demonstrate that the proposed deprivation of liberty is justified by coming within one of the permitted sub-paragraphs of article 5(1) of the Convention. Thirdly, that in addition to satisfying the court that the case comes within one of the permitted sub-paragraphs of article 5(1), the Local Authority must show that the removal of the child’s liberty satisfies the test of proportionality, which in practice means that the restrictions are proportionate to the risks that the child would face if the restrictions were not imposed.

In this case the Local Authority accepted that the primary purpose, at least to date, relied upon to justify the deprivation was to keep LB safe in the sense that the restrictions were intended to prevent LB from absconding and returning to live with her mother. Frankly, counsel for the Local Authority accepted in submissions that this was a “welfare” reason and that, to date, the Local Authority had not focused on whether that was a permitted reason under article 5(1) of the Convention. Ms Slater for the Local Authority frankly accepted that, once the point had been raised, depriving a child of their liberty for pure welfare reasons or to prevent a child absconding could not come within article 5(1).

However, Ms Slater submitted that the Local Authority should be given time to prepare a case that it was permissible to deprive LB of her liberty under article 5(1)(d), namely “for the purpose of educational supervision” but she accepted that she was not in a position to be able to make that case today. That seemed to me to be an entirely responsible and realistic position for the Local Authority to take. That raised the question as to what was meant by the term “educational supervision” in article 5(1) of the Convention.

In Boumar v Belgium (ECTHR: 9106/80) the European Court of Human Rights was dealing with a case of a juvenile who had been diverted from the criminal justice system but was nonetheless detained in prison for extended periods whilst arrangements were made for suitable accommodation to be provided to him. The court explained at paragraph 43 that article 5(1) “sets out an exhaustive list which must be interpreted strictly”. It said at paragraph 52, in response to a submission that the Belgium state that relied on article 5(1)(d), “The Belgian State chose the system of educational supervision with a view to carrying out its policy on juvenile delinquency. Consequently it was under an obligation to put in place appropriate institutional facilities which met the demands of security and the educational objectives of the 1965 Act, in order to be able to satisfy the requirements of Article 5 § 1 (d) (art. 5-1-d) of the Convention”. It then noted that the evidence did not support that case and thus concluded there was a breach of article 5. In Blokhin v Russia (Case 47152/06) the Court developed this area of jurisprudence when it held that the detention for educational supervision pursuant to Article 5(1)(d) must take place in an appropriate facility with the resources to meet the necessary educational objectives.

The ECtHR returned to the issue in Koniarska v United Kingdom (2000) 30 EHRR CD 139. This was an admissibility decision in relation to a 17 year old who had been the subject of a secure accommodation order made by the court under 25 of the Children Act 1989, and who had substantial mental health challenges. It seems to me that the fact that the local authority had followed the s25 statutory framework was a key feature of the case. The Court considered the case under article 5(1)(d) and said:

“Article 5(1)(d) authorises, amongst other things, the detention of a minor for the purpose of educational supervision. The applicant was under the age of 18, and therefore a minor, throughout the relevant period. The only question for the Court is thus whether the detention was “for the purpose” of educational supervision (see BOUAMAR V. BELGIUM (1989) 11 E.H.R.R. 1 , para. 50).

The Court notes that the orders made by the Magistrates Courts on 23 November 1995 and 23 February 1996 were not isolated orders for detention. They were orders made in the context of a long history of efforts by the applicant's parents and the various authorities to ensure the best possible upbringing for the applicant. In particular, the applicant was subject to a care order, and the application for a secure accommodation order represented the local authority's only way of keeping the applicant in the secure accommodation which they considered she needed.

The Court next notes that the applicant had passed the school leaving age, and apart from the secure accommodation orders could not have been required to attend continuing education. However, the relevant parts of Article 5(1)(d) of the Convention are limited to the detention of “minors”, and not to the detention of persons below the official school leaving age. The mere fact that the applicant, aged 17, could no longer have been required to attend ordinary school does not taint her detention under a specific order, provided that the detention was indeed “for the purpose of educational supervision”.

The applicant claims that the detention was not “for” the purpose of educational supervision, but that any education which was offered was purely incidental to the real reason for the detention, which was (in respect of the first order) “a need for protection and containment pending the actioning of her care plan”.

The Court considers that, in the context of the detention of minors, the words “educational supervision” must not be equated rigidly with notions of classroom teaching. In particular, in the present context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned. The Court has no doubt that the orders made by the Magistrates Courts on 23 November 1995 and 23 February 1996, on the application of the local authority, were capable of constituting part of the “educational supervision” of the applicant.

As to the reality of the educational provision in the present case, the Court notes that Glenthorne, to which the applicant was sent, is a specialist residential facility for seriously disturbed young people. As part of its multi-disciplinary approach, it provides an educational programme in which young people are taught in groups of three or four, or sometimes on a one-to-one or a one-to-two basis. Until January 1996 the applicant attended a full range of classes, and that even after an incident with another student she attended some classes and took part in life skills and social skills programmes. The fact that the number of classes attended by the applicant was limited because she chose not to go cannot affect the underlying position, which was that extensive educational provision was made, and the applicant benefited from it to a certain extent. The present case is therefore to be distinguished from the above-mentioned BOUAMAR case, in which the applicant was detained “in a remand prison in conditions of virtual isolation and without the assistance of staff with educational training” (above-mentioned BOUAMAR V. BELGIUM , para. 52)”

That case was referred to by Lady Black in Re T at paragraph 83. Lady Black also referred to the observations of Judge LJ who said in In re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] Fam 377 at paragraph 107:

“This goes far beyond school. It is not just about the restriction on liberty involved in requiring a reluctant child to remain at school for the school day. It arises in the context of the responsibilities of parents which extend well beyond ensuring the child’s attendance at school. So it involves education in the broad sense, similar, I would respectfully suggest, to the general development of the child’s physical, intellectual, emotional, social and behavioural abilities, all of which have to be encouraged by responsible parents, as part of his upbringing and education, and for this purpose, an appropriate level of supervision of the child to enhance his development, where necessary, by restricting his liberty is permitted”

I fully accept that the term “educational supervision” in article 5(1) has to be widely interpreted and is far wider than formal classroom based education. However, whilst educational supervision encompasses a wide concept, in my judgment it cannot be wholly equated with a child’s welfare and restrictions and a deprivation of liberty cannot be justified under this part of the convention primarily to prevent a child absconding. A Local Authority is fully entitled to advance a case to say that a child has been accommodated in a specific placement where the purpose of the placement is to provide educational support to the child across a wide range of life skills and to show that sufficient resources have been allocated to the placement so as to ensure that the education is a central focus of the placement. As part of that case, it could show that appropriate trained staff have been allocated so as to ensure that this educational provision is delivered. It is also open to a Local Authority to provide evidence to show that (a) in the particular circumstances of the case, this educational support can only be delivered to the child if the child is subject to restrictions on his or her liberty, (b) that those restrictions amount to a deprivation of the child’s liberty and (c) that this is both necessary and proportionate. However, absent such evidence, I do not see how a court could properly conclude in a case like the present that the matter comes within article 5(1)(d) as interpreted by the ECtHR in the various cases set out above.

In this case there was some, albeit limited, evidence to show that LB was being assisted by staff at the placement to learn a series of life skills with a view to her having the tools to make better decisions for herself going forward. However, Ms Slater accepted that this evidence fell a long way short to evidence which could satisfy a court that the case came within article 5(1)(d). I thus declined to continue the existing DOLS order and instead adjourned the case so that the Local Authority had an opportunity to present evidence to support a case that it was justified in making arrangements which had the effect of depriving LB of her liberty.

It follows that, at present, there is no authorisation which allows care staff actively to deprive LB of her liberty. I am not convinced that, in practice, this will make a huge amount of difference because the facts show that, notwithstanding the existing order, LB has absconded on a number of occasions since the DOLS order was made. It may well be that, in the next 2 weeks or so, both the Local Authority and LB will understand whether the DOLS restrictions are really needed to enable placement staff to deliver a structured programme of support to LB. If she absconds on a regular basis, that will strengthen the Local Authority’s case that the DOLS is needed. Conversely, if LB and the placement staff show that they can work together without the need for a DOLS, that may lead the Local Authority to consider its position and/or may cause a future court carefully to examine the necessity of reinstituting the DOLS order.

It follows that I declined to make a new DOLS order at the hearing on 13 May 2025 because I did not consider that the Local Authority had provided the evidence needed to entitle me to make an order. Rather than dismiss the case, I adjourned the case to 28^th May 2025 so that all parties can prepare for a resumed hearing, should this be needed.