Neutral Citation number: [2014] EWCOP 46

IN THE COURT OF PROTECTION
	No.  COP-12498686	

Royal Courts of Justice

Tuesday, 21st October 2014
Before:
MR JUSTICE HOLMAN
(Sitting throughout in public)

BARNSLEY METROPOLITAN BOROUGH COUNCIL
Applicant
- and -

GS and ES
Respondents
- and -

SECRETARY OF STATE FOR EDUCATION
Intervener
_________
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MRS NATALIA PERRETT appeared on behalf of Barnsley Metropolitan Borough Council.

MR J. O’BRIEN (instructed by the Official Solicitor) appeared on behalf of the patient.

MISS J. CLEMENT (instructed by the Treasury Solicitor) appeared on behalf of the Secretary of     State for Education.

_________

J U D G M E N T
MR JUSTICE HOLMAN:

1	I have heard the whole of this case in public and now give this judgment in public.  However, I direct that no report of this case in the media or elsewhere may name or identify the patient concerned, nor his family, nor the address at which he or they live.

2	This judgment might be described as a sequel to the judgment I gave in the completely separate case of Liverpool City Council –v- SG [2014] EWCOP 10 on 18th June 2014 (“the Liverpool case”).  The present case is the case of Barnsley Metropolitan Borough Council and S, S and P (Case No. 12498686) to which I referred in paragraph 12 of my judgment in the Liverpool case.  This case, like the Liverpool case, concerns an application which has been made to the Court of Protection in relation to a young adult, P, who is now aged just 20.  He has learning disability and is on the autism spectrum, and currently continues to reside at a registered children’s home where he was residing before he attained the age of 18.   

3	There is disagreement between P’s parents, on the one hand, and the local authority, on the other hand, as to the most appropriate arrangements for the longer term care of P, now that he is adult.  His parents, who live far from London, did not attend the present hearing, which was directed to a pure point of law, but they did lodge a skeleton argument, which I have read.  It is an articulate and eloquent document, which sets out very clearly their view and case that arrangements should be made, and funded, so that P can live at home with his family.  

4	The local authority, on the other hand, consider that his welfare is best served by remaining in residential care provided by the State.  The local authority recognise that their current arrangements and future plans for P involve a deprivation of his liberty, as that concept is now understood in the light of the decision of the Supreme Court in the Cheshire West case; so they commenced the present proceedings in the Court of Protection, sitting in Sheffield, where the case is being managed by District Judge Bellamy of the Court of Protection.

5	The most recent hearing was on 19th August 2014.  The Secretary of State for Education had applied for permission to intervene to raise the issue, which I now address in this judgment, and was granted permission to do so.

6	District Judge Bellamy temporarily transferred the case to a High Court Judge to determine a preliminary issue which he identified in his order as follows:

“Does regulation 17A of the Children’s Homes Regulations 2001 and/or paragraph 3.19 of the National Minimum Standards for Children’s Homes prevent a court from authorising any deprivation of liberty of an individual residing in a registered children’s home if a court concludes that such deprivation of liberty pursues a legitimate aim and is necessary, proportionate and in the individual’s best interests?”

7	District Judge Bellamy also gave a range of directions for the future investigation and conduct of the welfare issues in the case, and fixed a further hearing before himself in late November 2014.  Paragraph 13 of the order of District Judge Bellamy provides as follows:

“Following the determination of the preliminary issue, the High Court Judge is to determine whether the case should be retained in the High Court or transferred back to District Judge Bellamy.”

Patently, this case should now return to the local venue of the Court of Protection in Sheffield or Yorkshire, and I unhesitatingly determine and direct that the case is now transferred back to District Judge Bellamy.

8	I am not willing to provide a formal answer to the preliminary issue in the wide terms in which the question is drafted and posed, as set out above.  I consider that it is more appropriate and wise that I answer the question in a more case specific way, substituting the name of P for the words “an individual” and “the individual’s” where they appear in the above quotation.  When the question is reformulated in that way, which is all that resolution of this case requires, I answer it “no”.  That is the answer for which each of the Secretary of State for Education, the local authority and the Official Solicitor, as litigation friend, all contend.  It follows that within this case, as in the Liverpool case, I have not heard any argument or submissions to the contrary, which is one of the reasons why I consider it more appropriate to limit the question and my answer to the case specific circumstances of P, rather than any “individual”.  

9	I decided the Liverpool case on the “short and simple point ... that the relevant parts of the Children’s Homes Regulation 2001 simply do not apply at all in the case of a person who is no longer a child” (see paragraph 48 of my judgment in that case).  

10	At the outset of, and during the first part of, the present hearing, the Secretary of State for Education and her counsel, Miss Joanne Clement, strongly submitted that I had been wrong to reach that reason, and that the Children’s Homes Regulations 2001 SI [2001] No. 3967, and in particular regulation 17A, do apply to the case of a person who is accommodated in a children’s home even if the person concerned is no longer a child.  Although there is no provision in the Interpretation Regulation (regulation 2) to extend the words “child” or “children” beyond their normal meaning in the law, namely a person under the age of 18, Miss Clement contended that, wherever the words “child” or “children” appear in those regulations (and they pervade them), they must, in fact, mean any person, whether child or adult, who is accommodated in a children’s home.  She submitted that there is what she called “a presumption against absurdity” and that it would be absurd if the protection afforded by the regulations ceased at the moment a person, who was, in fact, being accommodated in a children’s home, attained the age of 18.

11	Whilst I readily agree that an incapacitated person who is aged 18 plus one day is in need of just the same protection as he was when aged 18 less one day, I found Miss Clement’s arguments on this point difficult to accept.  There are many powers, duties and responsibilities which, in practical terms, are no less needed for the protection of a person aged 18 plus one day than for the protection of  a person aged 18 less one day; but the fact is that in many instances the law does draw a very sharp line at the moment of attaining the age of 18.  The impact of that line could often, as in the present situation, be characterised as arbitrary, but not, I think, as absurd.  If an instrument, including a regulation, employs the words “child” or “children” without any express definition, then, in my view, it would require a very clear necessary implication before the word could be held to include also someone who is an adult.  

12	However, before the end of the hearing and her own submissions, Miss Clement, upon instructions from the officials present in the courtroom, expressly abandoned her contention that, in the Children’s Homes Regulations 2001, the words “child” or “children” include a person who has attained the age of 18.  She did so, because it is clear from section 22 of the Care Standards Act 2001, pursuant to which the regulations were made, that the power to make regulations, itself, draws a distinction between children and adults.

13	Section 22(2)(d) provides that regulations may “... make provision for securing the welfare of persons accommodated in an establishment...”  That employs the age neutral word “persons”.  However, section 22(5) then clearly distinguishes between persons who are adult and persons who are children.  It provides as follows:

“22(5) Regulations under paragraph (d) of sub-section (2) may, in particular, make provision - 

(a) as to the promotion and protection of the health of persons such as are mentioned in that paragraph;

(b) as to the control and restraint of adults accommodated in, or provided with services by, an establishment;

(c) as to the control, restraint and discipline of children accommodated in, or provided with services by, an establishment.”
My emphasis added.

14	The recital to the regulations, themselves, recites that the Secretary of State was exercising the powers conferred by, amongst other sections, section 22(5)(a) and (c).  The recital does not refer to exercise of the power conferred by section 22(5)(b).  That omission must patently have been deliberate.  In other words, when making the regulations in 2001, the Secretary of State deliberately did not make provision as to the control and restraint of adults, which would have been pursuant to section 22(5)(b).  

15	Miss Clement therefore conceded that, for present purposes, I was correct to say in the Liverpool case that the 2001 regulations simply do not apply at all in the case of a person who is no longer a child.  If the Secretary of State now considers that the ambit and protection of the regulations should be extended to include an adult, she already has power under section 22, including section 22(5)(b), to lay amending regulations before Parliament to that effect.  In view of the concession that I have just described, they would be amending regulations, not merely regulations made “for the avoidance of doubt”, as earlier suggested in paragraph 53(1) of Miss Clement’s skeleton argument dated 13th October 2014 for this hearing. 
 
16	Reverting to the issue posed by District Judge Bellamy in the present case, the Secretary of State now agrees that regulation 17A does not apply at all to this P and, in any event, does not prevent the court from authorising any deprivation of his liberty.  The focus in the Liverpool case was entirely upon the impact of that regulation.   In the present case, however, as the issue formulated by District Judge Bellamy indicates, reference has been made also to the National Minimum Standards for Children’s Homes issued by the Department of Education in April 2011 (“NMS”).  The NMS did not feature at all in the argument in the Liverpool case, except for the references in the email from Mr Kevin Brooks of the Treasury Solicitor, which I quoted at paragraph 18 of my judgment in that case.  In the present case, however, the Secretary of State for Education and Miss Clement have placed heavy emphasis on them.  The NMS are published pursuant to section 23 of the Care Standards Act 2000, and section 23 (1A) provides that the standards “... may, in particular, explain or supplement requirements imposed in relation to an establishment or agency by regulations under section 22.”   By section 23(4), the standards shall be taken into account in the making of decisions by the registration authority; and the wide and potentially severe ambit of such decisions is clear from sections 20, 20A and 22B.  

17	The situation in relation to the NMS is quite different from that in relation to the regulations, for the General Introduction to the NMS makes express that “…any references to the term ‘child’ or ‘children’ in the NMS are to be read to include any person who is living or accommodated at a children’s home ... This will include, for example, a young person who was placed at the home as a looked after child, and has continued to remain at the home after their 18th birthday ...  Providers must ensure that they meet the standards equally for any adult, as well as any child, accommodated at their home.”

18	The scope and reach of the NMS is, therefore, crystal clear, and they unquestionably continue to apply to P in the present case.  NMS 3.13 provides as follows:

“Methods to de-escalate confrontations or potentially violent behaviour are used wherever appropriate to avoid the use of physical restraint.  Restraint is only used in exceptional circumstances, to prevent injury to any person (including the child who is being restrained) or to prevent serious damage to the property of any person (including the child who is being restrained).  In a secure children’s home a child may be restrained for the purposes of preventing the child from absconding.”

NMS 3.19 provides as follows:

“No children’s home restricts the liberty of any child as a matter of routine or provides any form of secure accommodation unless that home is an approved secure children’s home.”

19	The reason why a question has arisen as to the impact of the NMS upon the power of the Court of Protection to authorise a deprivation of liberty is the language of Guidance issued jointly by the President of the Court of Protection, Sir James Munby, and the National Director, Social Care, Ofsted, Debbie Jones, on 12th February 2014 to which I refer in paragraphs 6, 40 to 46, and generally, in my judgment in the Liverpool case.  

20	In the Liverpool case, the focus was upon paragraph 4 of the guidance which itself refers to the regulations and to a child.  I said at paragraph 43 of my judgment in the Liverpool case that “…it is possible ... that the accuracy of that part of the guidance is more debatable ... But that is territory into which I simply should not and do not venture in the present case because paragraph 4 of the guidance is directed to ‘a child’ and, as I have stressed, the patient in this case is not a child.”

21	However, paragraphs 5,  6, 7 and 8 of the guidance, which I did not quote in the Liverpool case, make express reference to the NMS in relation to non-maintained residential special schools and independent residential special schools.   It is sufficient to quote from paragraphs 5 and 6 of the guidance:

.
“Non-maintained residential special schools
5.  These schools must comply with the Education (Non-Maintained Special Schools) (England) Regulations 2011 which require the school to comply with the National Minimum Standards in relation to safeguarding the welfare of children.   NMS 12.7 states that:

‘No school restricts the liberty of any child as a matter of routine or provides any form of secure accommodation.’

6.   As this type of school is unable to deprive a young person of their liberty the Court of Protection has no jurisdiction to make an order that requires or authorises it to do so in breach of that regulation.”

22	The language of paragraph 3.19 of the NMS in relation to children’s homes is identical to the language of paragraph 12.7 of the NMS in relation to residential special schools, substituting the words “children’s home” for “school” and excepting a children’s home which is an approved secure children’s home.  Accordingly, if the view expressed in paragraph 6 of the guidance is correct in relation to a non-maintained residential special school, it must apply also to a children’s home which is not an approved secure children’s home.  If it is correct, it would yield the answer “yes” to the question posed in this case in so far as it refers to paragraph 3.19 of the NMS.  In other words, if the guidance is correct, paragraph 3.19 of the NMS does prevent the Court of Protection from authorising any deprivation of liberty of a person, including an adult such as this P, who is residing in a registered children’s home.  

23	In agreement with the submissions of each of the Secretary of State for Education, the local authority in this case and the Official Solicitor, I very respectfully do not agree with the reasoning in paragraph 6 of the guidance.  There is nothing in either the legislation, or the regulations, or the NMS which has the effect that a children’s home, which is not an approved secure children’s home, is “unable” to deprive a person of his liberty.  To the contrary, regulation 17A contemplates that, when there is no alternative method of preventing injury to any person (including the person who is restrained) or serious damage to the property of any person, restraint may be used, provided it is proportionate and no more force than is necessary is used.  

24	The NMS 3.19 and 12.7 themselves state that “No children’s home/school ... restricts the liberty of any child as a matter of routine…”  Whilst never a matter of routine, those very standards clearly contemplate that a home or school may have to restrict liberty as a matter of non-routine.  Such restraint may involve a deprivation of liberty as now understood and, in my view, the unqualified proposition in paragraph 4 of the guidance that there is no purpose to be served in seeking an order of the Court of Protection goes too far.  So, accordingly, does the proposition in paragraph 6 and the summary in paragraph 13 of the guidance.  In my view, there can indeed be circumstances in which the Court of Protection may authorise a children’s home or residential special school to impose restraint which amounts to a deprivation of liberty, and the guidance is mistaken in suggesting that the effect of the NMS is necessarily to prevent the court from doing so.

25	Unlike the regulations, the NMS definitely do apply in relation to this P even although he is now adult; and in so far as the question asks whether paragraph 3.19 of the NMS prevents the court from authorising any deprivation of his liberty, I answer it “no”.  

26	Whether or not it is lawful, necessary, proportionate and in his best interests to do so raises, of course, a range of issues and will need very thorough investigation and assessment.  It is those issues and that decision that I now transfer back to District Judge Bellamy.  

27	Clearly, the Secretary of State for Education has a close interest in the issues that this and the Liverpool case raised, and I refer again to the email sent by Mr. Brooks in the Liverpool case and quoted in paragraph 18 of my judgment in that case, which gives some statistics as to the number of children and young persons potentially affected.   The President of the Court of Protection, Sir James Munby, is renowned for his approachability.  If the Secretary of State for Education is concerned about aspects of the guidance (upon which I have been told that the Secretary of State was not consulted before it was issued), then I would encourage and urge her to raise them with him without delay.