Contesting a Deprivation of Liberty Order for a Child

Overview of a Deprivation of Liberty Order and the Processes Involved

If you or someone you know has a child who has been made the subject of a Deprivation of Liberty Order, you probably have a lot of questions. These serious orders often involve children under constant supervision and control, who are not free to leave. While designed to ensure the safety and well-being of children and those around them, Deprivation of Liberty Orders inherently raise ethical and legal concerns about the balance between protection and personal freedom. Contesting a Deprivation of Liberty Order provides an opportunity to reassess the circumstances surrounding the decision, assert the rights of a child subject to one, and present alternative solutions that keeps the child’s best interests at heart.

In this article our skilled and compassionate child care proceedings team at Tyrer Roxburgh Solicitors provide a comprehensive overview of Deprivation of Liberty Orders for a child, including common reasons and grounds for contesting one, the steps involved, and how an experienced child care lawyer can assist.

What is a Deprivation of Liberty Order for a Child?

A Deprivation of Liberty Order for a child does exactly what the name suggests i.e. it authorises the restriction of a child’s liberty, including freedom of movement beyond what would normally be applied to someone of that age. The family courts have what is known as an ‘inherent jurisdiction’ to issue such orders for children where a place cannot be found for them in authorised or approved settings, such as secure children’s accommodation. With the sharp decline in availability of secure accommodation, unregistered / unregulated placements in anything from semi-independent living accommodation to caravans and holiday rentals has been on the rise.

Because liberty and security is a basic human right, such orders are sought where there are serious concerns about a child’s safety or welfare. Their purpose is to protect a child at risk of being harmed, harming themselves, or others. Common situations where a Deprivation of Liberty Order for a child might be considered include:

1. Severe Behavioural Issues: If a child exhibits extreme behavioural problems that pose a risk to themselves or others, such as verbally or physically aggressive behaviour, and less restrictive measures have been unsuccessful.

2. Mental Health Concerns and Learning Disabilities: To provide the appropriate support and supervision to a child whose mental health or learning disabilities compromise their safety and / or the safety of others.

3. Risk of Harm: Where a child is deemed to be at risk of significant harm (either self-harm or harm from others), including those vulnerable to physical, emotional and / or sexual abuse and exploitation.

To lawfully obtain a Deprivation of Liberty Order for a child, it must be demonstrated that the child lacks the capacity to make decisions regarding their care or treatment, and that the proposed restrictions are necessary and proportionate to protect the child’s best interests. This means that the court must weigh up the necessity of the order against the impact on the child’s rights and freedoms, satisfy themselves that the order is proportionate to the identified risks, and that any restrictions placed are the least restrictive option available to address the concerns at hand.

Reasons to Contest a Deprivation of Liberty Order for a Child

A Deprivation of Liberty Order is a serious decision that restricts a child’s freedom and autonomy. This naturally raises important questions about whether the order is actually in the child’s best interests, respects a child’s human rights, and / or is made in line with the principles of necessity and proportionality. Contesting such orders often starts because parents and guardians have concerns that:

– The Child’s Well-being is at Stake: A Deprivation of Liberty Order may have far-reaching emotional, psychological, or physical impacts on the child that are detrimental to their health and development. For example, being placed in a restrictive environment could lead to feelings of isolation, loneliness, and even trauma for the child that outweigh the measures taken to protect them.

– The Rights of the Child and Family are Compromised: Human Rights laws emphasise the importance of preserving family life and the child’s right to privacy. A Deprivation of Liberty Order can seriously disrupt familial bonds and relationships, which are crucial for a child’s development and emotional stability.

– There’s Possible Misinterpretation or Misapplication of the Law: In some cases, a Deprivation of Liberty Order for a child may have been inappropriately issued due to a misinterpretation or misapplication of the law. It is important to review the circumstances surrounding the order and determine if it was justified and necessary.

Legal Grounds for Contesting a Deprivation of Liberty Order for a Child

Although your concerns may be well-founded, to formally contest a Deprivation of Liberty Order for a child you need a legal basis. These are:

1. Violation of Legal Standards: If the circumstances under which the order was made do not meet the established legal criteria, it can be argued that the order is unlawful.
This includes the principles of proportionality and necessity of the order to protect a child from harm, the suitability of the placement, and whether it is in the best interests of the child.

2. Human Rights Violations: For children in particular, the UN Convention on the Rights of the Child (UNCRC) makes it clear that depriving a child of their liberty should be used as a measure of last resort. Article 8 of the European Convention on Human rights also mandates respect for family life, which can only be invaded in so far as it is proportionate to the issue at hand, necessary for the protection and welfare of a child, and in their best interests. It follows that if less restrictive measures are available, or if the Deprivation of Liberty Order is deemed to infringe upon a child’s right to liberty without adequate justification or consideration of their personal circumstances, this can be a basis for contesting the order.

3. Insufficient Justification: A Deprivation of Liberty Order must be supported by adequate evidence and reasoning. If the decision to impose a deprivation of liberty is based on insufficient or flawed evidence, it can be challenged in court. For instance, if the authorities fail to demonstrate convincingly that the child is at significant risk of harm which necessitates such a drastic measure, the order may be considered unjustified. Legal representatives can argue that the decision-makers did not fully explore all options or consider the child’s individual circumstances, thereby undermining the validity of the Deprivation of Liberty Order.

4. Procedural Errors: Failure to follow proper processes when obtaining the Deprivation of Liberty Order may be subject to scrutiny by the courts. This includes ensuring that the child in question is made a party to the proceedings, given the opportunity to express their views to the judge (if of age), and appointed a guardian to represent his or her best interests.

The Process of Contesting a Deprivation of Liberty Order for a Child

1. Consulting Legal Professionals:

Contesting a Deprivation of Liberty Order for a child at court can be a complex and emotionally charged process. Before taking any formal steps, it is essential to consult with legal professionals with expertise in this area. The team at Tyrer Roxburgh can provide valuable guidance on the viability of your case and the legal implications of contesting the order. There are also specialist Children’s Advocates, who can help voice the child’s concerns and represent their best interests during these types of proceedings.

2. Gathering Evidence:

It is important to do the groundwork when it comes to legal proceedings. You want to gather documentation that supports your case. Your family lawyer can help you source and collate key evidence, such as:

– Expert reports from professionals like psychologists, social workers, or medical practitioners who can provide insights into the child’s needs and circumstances.
– Health records relevant to the child’s situation, including any assessments, diagnoses or treatment.
– Personal statements from those involved in the child’s life, such as family members, teachers, or caregivers, detailing their observations and experiences.
– Correspondence, outcomes, and recommendations from other professionals such as social workers, or any previous court involvement.

3. Filing Papers at Court:

For Deprivation of Liberty Orders for a child issued by the High Court (Family Division), appeals are made to the Court of Appeal. There are strict procedures and timeframes to follow. Generally, it involves completing the Appellant’s Notice Form and filing it together with a separate document listing your grounds of appeal, and a copy of the Order you are contesting. You must also pay the requisite court fee. It is important you do this within any time limits set by the judge when making the Order, or within 21 days of the date of the decision if not specified. You may also need to seek permission to appeal in the first place. The whole process can be complex and confusing. Engaging a specialist family lawyer can help ensure you complete the forms correctly and avoid any errors that may jeopardise your appeal. You may also want to consider appearing at any hearing listed by the court to review the terms of the original Deprivation of Liberty Order.

4. Preparing for the Hearing:

Attending court can be an overwhelming experience. It helps to familiarise yourself with the court process and what to expect. Hearings tend to follow a clear structure, with both parties being given an opportunity to present their cases and the judge ask any questions before making a decision. It is important to prepare in advance so that you can effectively present your case and confidently answer any questions. Create a clear and organised presentation of your evidence. This might include a summary of key points, documents and witness statements you intend to rely on. You may also want to practice explaining your case clearly and concisely with a friend. Your legal representative can help you prepare and alleviate any concerns you have surrounding the process.

Potential Outcomes and Next Steps:

When a case is brought before the Court of Appeal regarding a Deprivation of Liberty Order for a child, the judge will review the case based on its specifics and the legal arguments presented. The potential outcomes of such an appeal include:

– Upholding the Order: If the court finds that the original decision was justified and that the Deprivation of Liberty Order is still necessary for the child’s welfare, the order will be upheld. This outcome signifies that the court believes the initial ruling was made in accordance with the law and the best interests of the child.
– Amending the Order: The court may decide that while the Deprivation of Liberty Order should remain in place, it requires adjustments. This could involve changing specific conditions or the terms under which the order is executed to better suit the child’s needs or reflect new circumstances.
– Revoking the Order: If the court finds that the original order was not justified or that it no longer serves the child’s best interests, it may be revoked. This outcome allows for the child to regain their liberty and autonomy, assuming that appropriate safeguards are in place to ensure their safety and well-being.

While the Court of Appeal is typically the final court for most cases, if there are significant points of law involved, it may be possible to appeal the decision to the Supreme Court. This is typically reserved for cases that have broader implications or where there is a substantial question of law that needs to be clarified.

Compliance with any conditions set out in the court ruling is essential, especially if it relaxes the initial order. This may include regular reviews of the child’s situation, involvement of social services, or specific requirements regarding the child’s care and treatment.

Support Services and Resources for Families

Having a child who has been made the subject of a Deprivation of Liberty Order can be extremely distressing for families. It important to access support and resources available during this challenging time. You may be concerned about the costs of contesting a Deprivation of Liberty Order. A child care solicitor can help check eligibility and apply for legal aid to fund your case. There are also dedicated children’s rights and welfare groups, like The Family Rights Group and the Youth Justice Legal Centre, who provide specialist information, advice and emotional support to families. If you are really struggling during this turbulent time, mental health and counselling services including charities such as Mind are a helpful resource.

Summary

In conclusion, while Deprivation of Liberty Orders for a child may be designed to protect them, it is essential to ensure that legal measures genuinely serve the best interests of the child, rather than inadvertently causing harm or distress. Instances of overreach by local authorities, misunderstandings of the child’s situation, and incorrect application of the law can lead to such orders being issued inappropriately. It is then left to parents and guardians to advocate for the rights and well-being of their children by contesting the Deprivation of Liberty Order.

If you have concerns about a Deprivation of Liberty Order for a child, it is essential to seek legal advice and explore your options for contesting the order. Remember, the ultimate goal is to ensure the child’s safety and well-being while upholding their rights and dignity. Our specialist child care teams at Tyrer Roxburgh Solicitors have plenty of experience and a successful track record of helping families contest such orders. Get in touch with us today on 0208 899 3319 or via one of the options below.