Guidance on Article 5 of ECHR given, with regards to children in care
A court has issued guidance on children who are deprived of their liberty while in local authority care. The guidance was in relation to Article 5 of the European Convention on Human Rights (EHRC).
Article 5 of the EHRC states that everybody has the right to liberty and security of person.
The case, a first of its kind, involved seven children, all of who were aged between 11 and 16 and living with health difficulties. These ranged from autism to global developmental delay (GDD).
The children were in local authority care, some fostered and others in residential placements, and were either in locked settings or under heavy supervision.
Overseeing the proceedings was Sir James Munby, President of the Family Division of the High Court of England and Wales. He declared that in cases where a child was subject to a care order, the critical question would be whether there was confinement, as defined in the legal framework he had previously set out.
The state would be responsible for any such confinement and local authorities and parents would not be able to exercise parental responsibility in issuing consent.
He continued that each case must be judged on its individual facts, but for general guidance there would be a difference depending on age. For example, a 10-year-old under constant supervision was unlikely to be seen as deprived of their liberty, whereas a 12-year-old, in the eyes of court, could well be.
In remaining compliant with Article 5 of the EHRC, Sir James’ issued guidelines included:
· Confinement will be lawful if, as a matter of substance, it is both necessary and proportionate
· An application to the court should be made where the circumstances in which the child is, or will be living constitute at least arguably, a deprivation of liberty
· The child must be a party to the proceedings and have a guardian and should be permitted to express their wishes and feelings if of an age to do so.
He concluded that the case of a child affected by these decisions should be reviewed by a judge every 12 months.