Court of Protection and Deprivation of Liberty in Family Law
Deprivation of liberty is a legal concept defined under Article 5 of the European Convention on Human Rights (ECHR). It safeguards the fundamental right to freedom, ensuring that any restriction on an individual’s liberty must adhere to strict legal procedures and protections. This right applies to individuals of all ages and is enshrined in UK law through the Human Rights Act 1998.
In limited circumstances, a person’s liberty may be restricted, but only under a “procedure prescribed by law,” with the right to have such decisions reviewed by a court. Orders for deprivation of liberty can only be issued by a high court judge or a senior family court judge with Article 9 rights.
Key Legal Framework and Case Law
According to the Supreme Court ruling in Storck v Germany [2005], three conditions must be met:
- Confinement: The person is restricted to a specific place for a significant period.
- Lack of Consent: The individual cannot validly consent to their confinement.
- State Responsibility: The state is responsible for the confinement.
These principles were further upheld in P v Cheshire West and Chester Council [2014], emphasizing the need for proper legal safeguards.
How Family Courts Handle Deprivation of Liberty Applications
Applications for Children Under 18
Under Section 25 of the Children Act 1989, children may have their liberty restricted following an application by the local authority. This is often accompanied by a Care Order application, allowing the child to be placed in a secure, regulated home.
The court must ensure that specific welfare criteria are met before approving such orders:
- The child has a history of absconding and is likely to do so again.
- Absconding would expose the child to significant harm, such as exploitation or criminal behavior.
- Other types of accommodation would not prevent harm to the child or others.
Types of Orders Courts Can Make
Family courts have the jurisdiction to issue orders such as:
- Determining where a child resides.
- Restricting contact with specific individuals.
- Prohibiting sexual relationships.
- Securing properties to prevent absconding.
- Restricting access to personal belongings, allowances, or communication tools like phones.
- Monitoring food intake or searching personal belongings.
Specialist Deprivation of Liberty (DOLs) Court
Due to a lack of regulated secure children’s homes, courts increasingly use inherent jurisdiction to place children in unregulated secure settings. However, such applications are considered a last resort, only when no statutory mechanism applies.
To address this, the National DOLs Court was established in 2022, ensuring a specialized process for reviewing applications and minimizing reliance on unregulated placements.
Transition to Court of Protection for Adults
If a child nearing 18 continues to meet the welfare criteria for restricted liberty and lacks the capacity to consent to their placement, the local authority may apply to the Court of Protection for a Deprivation of Liberty Safeguard Order.
How We Can Help
Our team of legal experts specializes in representing families and children in deprivation of liberty cases. With expertise in complex care arrangements, we provide personalized advice and legal representation. Our team speaks over 60 languages, including Romanian, ensuring effective communication and understanding.
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