Deprivation of Liberty Explained

What is deprivation of liberty in respect of a young person?

A person is considered to be deprived of their liberty if, where they are living, they are subject to continuous supervision and are not free to leave. This could happen in a children’s home, a residential placement, an educational facility, or even the young person’s own home.

Deprivation of liberty, or DoLS, is the name given when a Local Authority feels it is necessary to deprive a youngperson who lacks capacity to make decisions about their care, or treatment, of their liberty in order to keep them safe.

If a young person is to be deprived of their liberty, in most cases it will be necessary for an application to the Court to be made. The application would be made to the High Court for the young person’s deprivation of liberty to be approved. If a Local Authority makes an application in respect of a young person for a Deprivation of Liberty Order, the Local Authority will need to explainits reasons for making the application, and why the young person’s consent should be dispensed with for their liberty to be restricted.

The starting point for deprivation of liberty is Article 5 ECHR, which states that everyone has the right to liberty and security of person.

There are three stages to the test for deprivation of liberty:

  1. Is the confinement in a particular or specific place for a non-negligible length of time?
  2. Is anyone able to consent to the confinement, a person with parental responsibility (i.e., a parent) but not a Local Authority with parental responsibility (they would have to apply to the Court for a DoLS Order)?
  3. Is the State responsible for confinement?

Helpful guidance is available in respect of deprivation of liberty issues and the Court’s decision on whether the placement of a child, or young person, involves a confinement, will depend on the actual circumstances of the child, comparing the relevant child with the circumstances of a typical child of the same age, station, familial background and relevant maturity who is free from disability.

A person with parental responsibility (but not a Local Authority with parental responsibility) can consent to a confinement on behalf of a child who is not competent, and otherwise the rule of thumb test is as follows:

  1. A child aged 10, even if under pretty constant supervision, is unlikely to be confined.
  2. A child aged 11, if under constant supervision, may in contrast be so confined, though the Court should be astute to avoid coming regularly to such a conclusion.
  3. A young person aged 16 and above must be assumed to have capacity, unless it is established that they lack capacity, under the Mental Capacity Act. If valid consent is provided, there can be no deprivation of liberty and Article 5 ECHR does not engage.
  4. If valid consent is absent, confinement which would amount to deprivation of liberty needs to be authorised by the State, i.e. by the Court. Any application made to the Court would result in the child having party status and a guardian being appointed to represent his or her best interests. Deprivation of Liberty Orders are most commonly found either in care proceedings or where a Care Order has been made in favour of a child or young person.

As a parent it is possible for you to consent to your child being deprived of their liberty. Many parents would be anxious to agree to such a significant deprivation on behalf of their child and it is understandable that parents may not feel able to consent. If a young person hascapacity to consent to their own deprivation and liberty and gives their consent, there will be no deprivation of liberty; whereas if the young person does not consent, there is every possibility that the Court could still direct the young person to be deprived of their liberty.

If a deprivation of liberty is authorised by the Court, the Local Authority would need to carry out regular reviews as to whether the deprivation of liberty ought to continue.

On a practical level, deprivation of liberty may meanconstant supervision within a home, or a residential setting, exclusion from certain areas, inability to go out into the community independently, supervision at school, use of medication or use of restraints, locks on internal or external doors. There arevarying ways that a deprivation of liberty can be put in place.

If you need any advice in respect of deprivation of liberty of a young person, please do not hesitate to contact our team of experts, who will be happy to help.