To provide some context to the decision the Court was being asked to make, the following explanations may be helpful:
Definition of Parental Responsibility
Parental Responsibility is defined by section 3 of the Children Act 1989 as meaning “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”
Under section 33(a) of the Children Act 1989 “while a care order is in force with respect to a child, the local authority designated by the order shall have parental responsibility for the child”
Concept of Deprivation of Liberty (DOLS)
Article 5 of the Human Rights Act 1998 provides that ‘everyone has the right to liberty and security of person’. Therefore, a Local Authority that has parental responsibility for a child cannot deprive that child of their liberty without the Court’s permission. Such an application can be granted under the Court’s inherent jurisdiction.
Mobile phone restriction & deprivation of liberty
In this particular case, the child who was the subject of the proceedings was a 16-year-old who was very vulnerable and who had the functioning of a 7 year old. The child was subject to an interim care order, so the Local Authority, in whose care the child was, shared Parental Responsibility of the child with the child’s parents.
The Local Authority sought permission for a number of restrictions, including to withhold the child’s mobile phone from 10p.m. until 8a.m. and also for staff at the child’s placement to be able to confiscate the child’s mobile phone if the child’s behaviour was escalating.
The Court had to consider whether this would in fact amount to a deprivation of the child’s liberty requiring the Court’s permission, or whether placing these restrictions were within the ambit of the Local Authority exercising its Parental Responsibility, in which case the Court’s permission would not be required.
In this case the Court refused to sanction the removal of the child’s electronic devices and her access to social media by way of a deprivation of liberty order. Instead, the Judge made a declaration that it is lawful for the Local Authority to impose such restrictions in the exercise of its Parental Responsibility and that these were to be recorded on the order. The Court said this was to include other steps to restrict or monitor the use by the child which had been requested by the Local Authority, to include refusing to fund top-ups, refusing to pay the bill for the phone and turning off or restricting the Wi-Fi in the face of the child’s objections, again where the Local Authority considers such a step necessary to safeguard and promote the child’s welfare.
The Court was satisfied that had there been evidence to justify it, it would have been open to the Court to use its inherent jurisdiction to authorise the use of restraint or other force in order to remove the child’s electronic devices, if the child refused to agree to their confiscation but that the evidence before the Court did not justify such an order being made.
The Court did not consider the removal of, or the placing of restrictions on the use of, the child’s mobile phone, tablet and laptop and use of social media to by themselves amount to a restriction of the child’s physical liberty for the purposes of Article 5(1) and that these restrictions act to restrict the child’s communication, so as to ensure the child’s physical and emotional safety.
The Court went on to suggest that it would not ordinarily be appropriate for it to authorise restrictions on phones and other electronic devices within an order authorising the deprivation of a child’s liberty. It went on further to say that:
- it is to be anticipated that in many cases, any restrictions on the use of such devices that are required to safeguard and promote the child’s welfare will fall properly to be dealt with by the Local Authority in exercising its Parental Responsibility.
- That is should only be necessary in only a small number of cases to apply for an order under the inherent jurisdiction, separate from the order authorising the deprivation of liberty, permitting more draconian steps to restrict the child’s use of a mobile phone or other device
- In those cases where an application is made, the Court will only make the order where there is cogent evidence that the child is likely to suffer significant harm if such an order under the Court’s inherent jurisdiction were not to be made.
As the Court pointed out and as is the norm in children’s cases, each case will determined on its own particular facts.
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