In January 2023, considering the situation of a highly vulnerable 16 year-old girl, the High Court refused to use its inherent jurisdiction to sanction broad-ranging restrictions on the girl’s use of her mobile phone, tablet, laptop and her access to social media. The restrictions were being proposed by the local authority looking after the girl as part of a deprivation of liberty regime designed to keep her safe from harm. Reflecting on the meaning and scope of ‘liberty’ within Article 5 of the European Convention on Human Rights, and reminding the local authority about the girl’s right to respect for private and family life under the Convention, the High Court found the powers under section 33 of the Children Act 1989 to be sufficient and appropriate to regulate the child’s phone and online activity when needed to keep her safe.
High Court refuses to authorise restrictions on child’s access to mobile phone, laptop and social media as part of a deprivation of liberty order
Background
This judgment concerns a 16 year-old girl referred to as ‘P’. P has a diagnosis of attention deficit hyperactivity disorder (ADHD) and she has been assessed by an educational psychologist to be functioning at a level of a much younger child. P was described during the court proceedings as confident in expressing her personality and “a funny, likeable, and kind young person with skills in creative arts, including making TikTok videos, and a love of animals”.
P first became looked after (under section 20 of the Children Act 1989) in June 2021, following the police using their powers of protection. There were many concerns about P’s safety and welfare, including P going missing on multiple occasions, self-harming and attempting to take her own life, and her vulnerability to child sexual and criminal exploitation. The local authority believed that P had experienced physical abuse from her father. There were also times when P threatened to harm others, including her family.
Over the next year, while in local authority’s care, P lived in two children’s homes and one unregistered “solo placement”, and she spent a significant amount of time in hospital due to continued attempts to harm herself and take her own life. After three separate assessments, it was decided that P did not meet the criteria for an admission to a mental health unit. In June 2022, after leaving the hospital, P was made the subject of an interim care order and returned to live in the ’solo placement’. Alongside an interim care order, a range of restrictions amounting to a deprivation of P’s liberty were also authorised. These restrictions, which were subsequently renewed, did not include any limitations on P’s use of her phone and other devices.
Then, in September 2022, an extended deprivation of liberty order was authorised to include restrictions on P’s use of her mobile phone, Tablet and laptop, and her access to social media. More extensive restrictions were authorised by the High Court soon after. They included: P’s mobile and other devices being taken away and kept by staff overnight; P not being able to use the house phone; P’s calls to friends and peers being supervised, recorded, logged, and shared with her social worker; P’s access to Wi-Fi being restricted; and staff checking P’s mobile telephone and other devices (please see paragraph 8 of the judgment for a full list of authorised restrictions). The restrictions were justified by P’s social worker’s concerns about both recorded and potential risks to P, such as her sharing her address, connecting with people online who may pose a risk to her and being encouraged by some peers to engage in negative behaviours. P was said to comply with the restrictive regime and was co-operative with staff, handing over her phone when asked to. P was made the subject of a care order in mid-January 2023.
January 2023 application for an order authorising deprivation of P’s liberty
At the time of the January 2023 court hearing, where a renewed authorisation of extensive restrictions on P’s liberty was being sought by the local authority, P was considered by her social worker and the Cafcass guardian as not competent to consent to the proposed measures. The proposed measures included: “3:1 supervision for P inside and outside the placement, the use of physical restraint inside and outside the placement where required to protect P from physically harming herself, regular supervision and observation, the removal from P of items that she may use to harm herself, access to P’s rooms and restriction on P’s access to the kitchen and staff room”.
The local authority sought the High Court’s authorisation for a range of restrictions on P’s use of her mobile phone and other devices, such as removing or limiting P’s access to her phone and Wi-Fi, monitoring, logging and reporting P’s phone calls, and staff checking her phone (see paragraph 15 of the judgment for the fill list of proposed restrictions).
The issue before the court
The key question before the High Court was whether restrictions on P’s use of a mobile phone and other devices constitute deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights (ECHR).
The local authority and the Cafcass guardian were of the view that removal and/or restrictions on the use of P’s phone constitute a deprivation of liberty under Article 5 ECHR as a necessary element of the regime imposed on P to keep her safe. The local authority also argued that the proposed restrictions were a proportionate and necessary interference with P’s Article 8 ECHR rights (right to respect for private and family life).
P’s lawyer argued that, while a child’s phone is an integral aspect of their liberty, especially “whilst locked behind closed doors”, the local authority’s power under section 33 of the Children Act 1989 were sufficient to regulate P’s use of her phone in situations when P refuses to co-operate with staff.
The High Court was asked to authorise the proposed restrictions using its inherent jurisdiction.
The legal framework
- European Convention on Human Rights (ECHR)/Human Rights Act 1998
Section 6(1) of the Human Rights Act 1998 places a duty on public bodies, which includes local authorities, to act compatibly with the rights protected by the ECHR.
Article 5 ECHR grants everyone – children and adults – the right to liberty and personal security.
There are three aspects of a child’s living conditions which will determine whether they are (or are not) deprived of their liberty for the purposes of Article 5 ECHR:
1. They are confined for more than a negligible period (this is called the ‘objective element’);
2. They have not consented to their confinement, or cannot give consent because they lack the mental capacity to do so (this is called the ‘subjective element’); and
3. The state is involved to some degree in their confinement (this is called ‘state involvement’).
If all three conditions apply, a child will be deprived of their liberty and Article 5 ECHR will be engaged.
To learn more about the three conditions and the safeguards that must be in place when a child is deprived of their liberty, please read our dedicated ‘law map’ on this topic.
Article 8 ECHR grants everyone – children and adults – the right to respect for private and family life, which includes correspondence. Any interference with this right by a public authority must follow the law and be necessary. The European Court of Human Rights has confirmed that a restriction cannot be regarded as necessary unless it is proportionate.
[To learn more about the scope of Article 8 in this context, see paragraph 37 of the judgment, where the court cites European case law which established that telephone conversations between a child and their parents constitute ‘correspondence’ for the purposes of Article 8.]
- Deprivation of liberty and domestic case law
The Cheshire West [2014] UK Supreme Court judgment established the so-called ‘acid test’ for deprivation of liberty under the Mental Capacity Act 2005 (which applies to people aged 16 and over). Under the ‘acid test’, deprivation of liberty occurs when (1) a person is under the complete supervision and control of those caring for them, (2) they are not free to leave and (3) the restrictions on their liberty are the responsibility of the state.
Crucially, in Cheshire West the Supreme Court said:
“… what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.” [2014] UKSC 19 (Paragraph 46)
- Care orders and the exercise of parental responsibility by local authorities
When a care order is made (under section 31 of the Children Act 1989) then, for the duration of that order, the local authority designated in the order to look after the child has parental responsibility for that child (section 33(3)(a)) and has the power to determine the extent to which other persons with parental responsibility can exercise parental responsibility for the child (section 33(3)(b)).
This means that local authorities have the power to limit the use of parental responsibility by others, including the child’s parents. This can involve, for instance, overriding parental objections to a specific decision (unless the law states otherwise).
Section 33(4) prohibits local authorities from overriding parental responsibility of others unless it is necessary to safeguard or promote the child’s welfare.
[Other exclusions also apply, such as changing a child’s name or their religion, taking them out of the country or consenting to adoption – see section 33(6)-(7))].
- The inherent jurisdiction of the High Court
Section 100(4) of the Children act 1989 gives the High Court the power to make an order in respect of an individual child where there is no other statutory order available and there is reasonable cause to believe that the child is likely to suffer significant harm without such an order being made. The use of the High Court’s inherent jurisdiction may apply to a child of any age, including those aged 16 and 17.
[To learn more about inherent jurisdiction, read the August 2021 issue of our legal digest.]
The High Court’s decision
The court concluded that it was not appropriate to authorise the proposed measures restricting P’s access to her mobile phone, Tablet and laptop and her access to social media for the purposes of Article 5 ECHR. Instead, the court said, “the appropriate legal framework in this case for mediating the removal of, or the restriction of the use of, P’s mobile phone, tablet and laptop and use of social media is that provided to the local authority by section 33(3)(b) of the Children Act 1989”.
The court explicitly recognised the importance of mobile phones and other internet-enabled devices to children and young people:
“I recognise that for P, in common with many other young people of her age, her mobile phone and other devices constitute a powerful analogue for freedom, particularly in circumstances where she is at present confined physically to her placement. Within this context, I accept that the possession and use of her mobile phone, tablet and laptop, and her concomitant access to social media, is likely to equate in P’s mind to “liberty” broadly defined as the state or condition of being free.” (Paragraph 45)
However, the court noted that the European Court of Human Rights has made clear that Article 5 ECHR concerns physical liberty of the person and that this interpretationwas adopted by the Supreme Court when it defined the scope of Article 5 in the Cheshire West case. This is significant because the restrictive measures relating to P using her phone and other devices do not in and of themselves restrict P’s physical liberty.
The court went on to say:
“The evidence before the court does not suggest that the restrictions on the use of P’s mobile phone, tablet and laptop and use of social media are required to ensure the effectiveness of the current measures that … prevent her from leaving the placement, or that without those restrictions the current measures that operate to prevent her from leaving the placement would be rendered ineffective. In these circumstances, in my judgment the restrictions in respect of P’s phone, tablet and laptop and on the use of social media do not, even when considered in the context of the other elements of the other restrictions for which authorisation is sought, constitute an objective component of confinement of P in a particular restricted place for a not negligible length of time.” (Paragraph 48)
Considering P’s right to respect for private and family life, the court noted that the restrictions on phone and other devices could be easily characterised as interference with P’s Article 8 rights and, for them to be authorised, the court would have to be satisfied that that interference is necessary and proportionate.
Reflecting on the local authority’s power to regulate P’s access to and use of her phone and other devices in line with the powers under section 33 of the Children Act 1989, the court said that it would constitute reasonable parenting to e.g., remove a phone in situations when otherwise the child would be considered at risk of significant harm, including if the child is 16 years old. Therefore, the local authority would be acting lawfully under section 33(3)(b) of the Children Act 1989 if it took steps to limit P’s access to her phone and other devices in order to safeguard her.
“It is open to the local authority pursuant to its powers under section 33(3)(b) of the Children Act 1989 to confiscate P’s phone in the face of her objection where the local authority considers such a step necessary to safeguard and promote P’s welfare. Likewise, it is open to the local authority, pursuant to its powers under section 33(3)(b) of the Children Act 1989, to take other steps to restrict or monitor the use by P of her mobile phone, tablet and laptop and social media, including 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 her objection, again where the local authority considers such a step necessary to safeguard and promote P’s welfare.” (Paragraph 63)
The court made a declaration confirming that it was lawful for the local authority to impose necessary restrictions, in line with its power under section 33(3)(b) of the Children Act 1989.
The other restrictions proposed by the local authority, e.g., 3:1 supervision, the use of physical restraint to protect P from physical harm, and restrictions on P’s access to the staff room and the kitchen, were authorised by the court on the basis that they amounted to a deprivation of P’s liberty for the purposes of Article 5 and that, based on evidence, authorisation was in P’s best interests.
Reflecting on decisions regarding deprivation of liberty, the court said:
“…it essential that the State adhere to the rule of law when acting to deprive a child of his or her liberty. This will extend to ensuring that an order lawfully depriving a child of his or her liberty does not act also to deprive that child of other cardinal rights without there being in place proper justification for such interference by reference to the specific content of those other rights.” (Paragraph 70)
The court concluded by saying that, while each case is different and must be decided based on its facts, it is likely that “only in a small number of cases should it be necessary to [resort to] an order under the inherent jurisdiction, separate from the order authorising the deprivation of liberty, authorising more draconian steps to restrict the child’s use of a mobile phone or other device and only then where there is cogent evidence that the child is likely to suffer significant harm if [such an order] were not to be made.” (Paragraph 71)
Additional information:
- The High Court’s order is appended to the judgment – see Schedule (after paragraph 72).
- Paragraphs 13 and 66-68 of the judgment contain noteworthy remarks regarding unregistered children’s homes, including the difference between settings registered with the Care Quality Commission vs. Ofsted.
You can read the full judgment here: [2023] EWHC 133 (Fam)