Respite for Riven's daughter – comments from Re RK

I saw in the news today that the parents of a severely disabled child may be forced to put their daughter into care because – as a result of the cuts – they have lost the support they needed to care for her at home. The case has hit the headlines because the mother concerned had been visited by David Cameron in the run-up to the election, and he had pledged to provide more support for parents like her. Cameron, we are told, is very concerned about this case and has asked the local authority to provide the support the family need. You can read Riven's incredibly moving statement here. This is all very well and good, if it transpires, but what about all the other families who Cameron didn't visit? I'm not sure this case is so unusual, and a recently published judgment on the Mental Health Law online website suggests that – once a child is placed in care due to a lack of support – it may not be so easy to bring them home again.

In Re RK, the parents attempt to argue that their child is effectively deprived of her liberty in the care home they were forced to place her in. Deprivation of liberty is a human rights law concept stemming from Article 5 of the European Convention on Human Rights. If the judge had found that RK was deprived of her liberty, the consequences would have been far reaching, because it would not have been 'in accordance with a procedure prescribed by law' as the Convention requires. It is only lawful to deprive someone of their liberty in certain circumstances. Article 5 does make provision for criminals to be deprived of their liberty in prisons, and also for other groups including psychiatric patients, drug addicts and vagrants (although it's a bit vague on when and why). One of the problems with Article 5, for the government, is that it doesn't make provision for other things that might be a deprivation of liberty, for instance kettling or control orders. This means, for instance, that if kettling protestors were found by a judge to be a deprivation of liberty, the practice of kettling would have to be banned, because it's not one of the permitted uses under Article 5. You can see that this might place a judge under a certain amount of pressure to find that kettling is not a deprivation of liberty. Parliamentary sovereignty, activist judges, European law bossing us around and all that.

Back to RK. Right at the very start of the judgment, at paragraph 6, the council explain that if RK is found to be deprived of her liberty, so might many, many children placed in care homes under s20 of the Children's Act 1989. There is no provision to authorise deprivation of liberty of children under the deprivation of liberty safeguards, and so potentially local authorities would have to apply to the court every time they wanted to authorise placing a child in a care home under s20. They would then have to have this authorisation reviewed on a regular basis by the court. The implications of this could be huge, the council argues – not only because of the time and resources spent applying to the court to authorise all these cases, but because the parents of children deprived of their liberty under the existing framework might try to claim compensation (paras 11-12). This would be a massive drain on the finite, dare I say dwindling, resources of local authorities.

So, before the judge has even considered the situation of the girl at the heart of this case, a loud warning shot is fired by the local authority: if you find she has been deprived of her liberty, the result could be financially crippling to local authorities up and down the country. Are these considerations relevant, we might ask, when the judge has been asked to consider whether RK's situation, on the facts, is a deprivation of liberty? That's a fascinating question. In this great introduction to the Human Rights Act 1998, the authors (including John Wadham – previously director of Liberty, and currently legal director at the Equality and Human Rights Commission) state:

The Lord's approach to deprivation of liberty mirrors that adopted by the domestic courts in relation to Article 3. Faced with absolute rights, the courts apply a proportionality analysis normally reserved for justifying a breach of a qualified right to determine the scope and content of the article. The correctness of this approach is open to question and is likely eventually to be tested before the Strasbourg Court.

What they are commenting on is that when faced with a situation where there is no legal way to justify a deprivation of liberty, the courts apply a 'proportionality' approach to the question of whether a deprivation of liberty has in fact occurred at all. In relation to this case – the judge appears to be considering policy issues as a frame to considering the scope of Article 5. The quibble, in short, is how the financial situation of local authorities' can be relevant to whether this girl is or isn't deprived of her liberty – when surely it's just a question of looking at her situation?

So was RK deprived of her liberty? Would Celyn, Riven's daughter, be, if she were placed in a care home? Ordinarily, when we think of someone being deprived of their liberty, it is in relation to a conscious decision by someone in authority that they will be confined to a particular space and no one is permitted to let them leave. Think of kettling, or control orders, or the situation of prisoners and psychiatric patients. Somebody, somewhere, has decided that they are to be kept within that space. Now, the problem in RK is that s20(8) of the Children's Act 1989 permits the parents to remove her from the care home and bring her home. This means, according to the judge, she can't be said to be deprived of her liberty because no legal obstacle is preventing the family from removing her (para 31). There's the rub; no legal obstacle – that is to say, no court has decided that RK should be removed from her parents' care; the local authority have not applied for a care order or refused to let her go home again. Like Riven, the obstacle the parents face in bringing her home is a lack of support to care for her there. Their lawyers argue that this means that the s20(8) right to bring her home is 'empty', and thus can't be used to argue that the parents are free to bring RK home (paras 32-34). In this argument, RK is effectively deprived of her liberty by a lack of support to care for her at home.

This is where it gets even more interesting. If the judge were to agree that, in effect, RK is unlawfully deprived of her liberty because of a lack of support to care for her at home, he might also have to find that the local authority have a positive obligation to remedy this situation – either by applying for authorisation to detain RK in the care home (or, the more likely preferred option) by supplying those very resources needed to support her in the family home. It looks like this is what the family are trying to do: the proceedings were in fact brought by the family in order to challenge the home care plan the council offered as an alternative to the care home (para 34). Their choice of legal weaponry is interesting. If they thought the care plan was crappy, they could seek a judicial review of the proposed care plan (in fact, para 34 suggests they might). I wouldn't like to speculate how a judicial review would go in this case as I'm far from expert in community care law as it applies to children, but the courts would be forced to take into account RK and her parents' 'right to family life' under Article 8 of the Convention. However, unlike the right to liberty, the right to family life is qualified, and if it carried heavy financial implications it could be weighed against the 'economic wellbeing' of the local authority and the rights of all the other people it has to provide services for. That is to say, Article 5 – if found to be engaged – could be much more potent in releasing the funds.

But, the judge found it wasn't engaged. Despite the practical impossibility of bringing their daughter home, the judge found that their legal right to do so meant she wasn't deprived of her liberty. The judge says 'I do not believe that the means of the parents can as a matter of logic or principle inform the answer to the question of whether RK's liberty is being deprived.' (para 35). So there you have it, it is only the law and people – not a lack of financial means, not poverty – that can deprive one of one's liberty. Deprivation of liberty has to be effected by the decision of a legal subject – is has to be done by someone, not something or some situation.

What does this mean for Riven? Well, if she does decide to place her daughter, Celyn, in a care home, they would be unable to argue that she was deprived of her liberty there to get the local authority to release the funds. They could perhaps seek a judicial review of the local authority decision to cut respite which precipitated their agonising decision. It's unclear how successful they would be, given the sympathy the judges may well have for local authorities' dire financial straits. It's also unclear whether, under the legal aid reforms, they would still qualify for free help and advice – or whether they could afford it if they did not. So what could a family in such circumstances do? Get on the blower to David Cameron, and hope he sits up and listens.