Later this year, the UN Committee on the Rights of the Child will examine the UK's record on protecting the rights of children. It will consider the report of the Equality and Human Rights Commission (EHRC) on the UK's progress in implementing the Convention on the Rights of the Child.

One of the areas in which the EHRC considers that there has been insufficient progress, or that there are emerging challenges in the realisation of children's rights, covers shortcomings in relation to children's mental health. The rights of children with mental disorders and disabilities have come under particular judicial scrutiny in recent months.

Deprivation of liberty

In the past year, the High Court and the Court of Protection have considered the case of D, a young person with diagnoses of Asperger's syndrome, attention deficit hyperactivity disorder, and Tourette's syndrome. The judge in each case was the same, and the question he faced on each occasion was whether D, who was in a psychiatric hospital receiving treatment for his mental disorders, was deprived of his liberty within the meaning of article 5 of the European Convention on Human Rights (ECHR). On each occasion, a different answer was given.

In the first judgment (Re D [2015] EWHC 922 (Fam)), the High Court concluded that although D was objectively deprived of his liberty as he was under constant supervision and control and was not free to leave the hospital, article 5 was not engaged as his parents were able to consent to his detention in hospital on his behalf.

Mr Justice Keehan held that 'the decisions which might be said to come within the zone of parental responsibility for a 15-year-old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15-year-old son suffers with D's disabilities. Thus a decision to keep such a 15-year-old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15-year-old boy who has erratic, challenging, and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.'

Parental consent

Eight months later, in Birmingham City Council
v D [2016] EWCOP 8, Keehan J held that D was objectively deprived of his liberty in a new residential placement to which he had moved, but that D's parents could not lawfully consent
to that deprivation of liberty and thus article 5 was

entirely explained by the fact that D had turned 16 between the two sets of proceedings. The second time, Keehan J held that reaching the age of 16 was a significant change, reflected in numerous Acts of Parliament, including the Mental Capacity Act 2005, and stated that 'however close the parents are to their child and however cooperative they are with treating clinicians, the parent of a 16 or 17-year-old young person may not consent to their confinement which, absent a valid consent, would amount to a deprivation of that young person's liberty'.

The implications of this decision for local authorities are significant, and it is possible that the first decision of Keehan J will be subject to an application for permission to appeal, which could further disrupt long-accepted approaches to the care of young people who lack mental capacity.

Restraint and seclusion

Article 5 has also raised its head in relation to educational establishments. Guidance in relation to the use of physical restraint or seclusion in respect of disruptive children is not obviously applicable in the case of children with mental health diagnoses. The adoption of 'calm rooms' by schools, both mainstream and special, is common, but can easily tip into seclusion, as defined by the Mental Health Act 1983 - the supervised confinement and isolation of a person, away from others, in an area from which the person is prevented from leaving, where it is of immediate necessity for the purpose of the containment of severe behavioural disturbance which is likely to cause harm to others.

The new Mental Health Act code of practice published in April 2015 expressly states that 'staff having care of children and young people should be aware that under section 3(5) of the Children Act 1989 they may do "what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare". Whether an intervention is reasonable or not will depend, among other things, upon the urgency and gravity of what is required. This might allow action to be taken to prevent a child from harming him/herself, however it would not allow restrictive interventions that are not proportionate and would not authorise actions that amounted to a deprivation of liberty.'

Need for guidance

Updated guidance from the government on the use of restraint and seclusion or 'calm rooms' in schools has been awaited for many months. In the meantime, numerous cases are coming to public attention in which mentally disordered children are kept in closed rooms against their wishes as a means of managing difficult behaviour.

In 2015, a school in Canberra hit the headlines when it was revealed that fencing had been used to make a 'cage' adjacent to a classroom so that an autistic child could be removed from class if required. An expert report commissioned following this incident concluded that there was 'little explicit guidance for schools and teachers about their obligations in relation to the use of restrictive practices' - a similar position exists in the UK.

Although there have, as yet, been no reported legal cases in this country (the authors are aware of cases that have settled), many human rights claims alleging breaches of articles 3, 5, and 8 EHCR are being brought against schools and local authorities here, in respect of failures to provide appropriate care and treatment to children and the unlawful use of 'calm rooms' as a form of seclusion.

In Re D (age 15), the court expressly relied on the fact that the arrangements for his care were 'overwhelmingly in D's best interests' and supported by his family and all the professionals involved in his life, in reaching the decision that his parents could consent to his deprivation of liberty, thereby ensuring that they would not 'be denied the ability to secure the best medical treatment and care for their son'.

The limits of parental consent to deprivation of liberty may be tested in circumstances at the other end of the spectrum, where what is described to parents as a 'time out' room or 'calm room', to which the child can remove him or herself by choice, becomes a place to which a disturbed child is physically propelled and then kept under supervision, unable to leave without permission.

There can be no doubt that the courts will be called upon with ever-increasing frequency to adjudicate upon these difficult and sensitive issues.

Jenni Richards QC, pictured, and Victoria Butler-Cole are barristers practising from 39 Essex Chambers. Jenni’s public law expertise includes local government, human rights, mental health, and community care. She is often instructed in cases under the Mental Capacity Act relating to capacity, medical treatment, and deprivation of liberty. Victoria is regularly instructed in matters including community care, healthcare, mental health, and education. She frequently appears in the High Court in judicial review proceedings, and in best interests hearings in the Court of Protection. @39EssexChambers

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