The High Court sheds further light on the limits of parental responsibility and when a deprivation of liberty authorisation is required in Re Z (A child: deprivation of liberty transition plan). The court was asked to invoke its inherent jurisdiction to authorise Z's move from home to a specialist residential school.
Readers will recall the case of Re D. In Re D, the Supreme Court considered whether it was in the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of Article 5. The Supreme Court determined it was not within the scope of parental responsibility for a parent to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty. With respect to a child under the age of 16, Lady Hale said that, logically, the conclusion would also apply to any younger child whose liberty was restricted to an extent which was not normal for a child of his age but that question did not arise in Re D.
Z is a 14-year-old boy diagnosed with autism and traits of pathological demand avoidance and attachment disorder. He is an adopted child and may have been exposed to drugs and alcohol pre-birth. He was violent and his behaviour escalated to the point where he became a danger to his parents and others. Despite the efforts of his family and of professionals to manage Z at home and in school, his violence towards his parents escalated drastically.
In February 2020, Z began a transition to a 38-week residential placement which was paused in light of Covid-19 lockdown. The plan to return to school was resumed in May but Z's behaviour proved too difficult to manage and a new placement at a 52-week specialist residential school was identified in the summer. When told about the new placement Z became extremely violent and agitated.
The local authority, parents and professionals worked together and carefully planned a phased transition to move Z to the residential school. The transition plan foresaw Z being deprived of his liberty during the journey to school and being subject to both physical restraint and chemical restraint by means of medication.
The local authority applied for an authorisation from the court in order to convey Z from his family home to the residential school, under section 100 of the Children’s Act 1989, even though authorisation for the residential placement itself was not required.
Section 20 of the Children's Act clarifies that parents’ consent renders the deprivation of liberty not imputable to the state, even if the state is paying for the regime and that the court need not make any declaration as to the lawfulness of the child’s care regime. This would fall under the exercise of “parental responsibility” under the Act. The use of reasonable force to manage Z's behaviour at school would be also be authorised under section 93 of the Education and Inspections Act 1996.
The court approved the complex transition plan and approved the authorisation under the inherent jurisdiction of the High Court.
The court noted that the transition plan, was carefully graduated, and Z would be given every opportunity to go to the placement under his own steam. The restraints contemplated on day five of the plan meant that Z would be confined in a vehicle for a not negligible length of time and would be under the continuous supervision of carers. In blunt terms, he would not be free to leave the vehicle. If matters escalated to the worst factual scenario – the determined refusal by Z to leave the parental home then, the circumstances of Z's removal from home into the secure vehicle and the conveyance against his will for a period of two hours followed by removal from the vehicle into the school represented a continuum of force and restraint when he was outside the care of his parents. The measures contemplated appeared to be at, if not beyond, the limits of what a parent could consent to within the proper exercise of their parental responsibility. Moreover, if the worst-case scenario were reached, the components of the detention that involved force were indivisible from the restraint in a confined place (a secure vehicle with persons and locks to prevent Z leaving that vehicle) so as to render the parents' or the child's own consent (even if competent) beyond the scope of what they could lawfully agree.
Whilst the judge noted that the “ambit of parental responsibility to delegate reasonable and measured chastisement of one's child is long-standing in the common law” she concluded that, in this case, the level of restraint or force required to effect Z’s move was beyond that necessary for the reasonable chastisement of a child.