Jessica Jarvis

In the digital age, children are exposed to an unprecedented amount of information and communication technologies. While this technology can be a powerful tool for education and development, it also poses significant risks to children’s safety and wellbeing. As such, safeguarding children has become a critical concern in the 21st century. However, safeguarding must also be balanced with children’s rights to freedom and liberty. Children have the right to express themselves, explore their identity, and make choices that shape their lives. Finding the balance between protecting children from harm and respecting their autonomy can be challenging, and requires a nuanced understanding of their evolving needs and capabilities. In this blog post, we will explore the complex landscape of safeguarding children in the 21st century, and examine how the Court of Protection continue to ensure that their rights to freedom and liberty are protected while also keeping them safe from harm.

The local authority and the Guardian agreed that the significant limitations imposed on P, a 16-year-old in question, would amount to a state-imposed confinement to which she had not given her consent and, as a result, a deprivation of her liberty, which the High Court could approve by exercising its inherent jurisdiction. Although MacDonald J acknowledged that this had been the custom up until this point (including his own), he felt it was important to give the matter more thought and came to the opposite decision.

Importantly, MacDonald J clarified at paragraph 26 that the caselaw supported what is commonly overlooked and identified: “in this context, and historically, the concept of liberty under Art 5(1) of the ECHR contemplates individual liberty in its classic sense, that is to say the physical liberty of the person,” and that the reference to “security” in Article 5 “serves simply to emphasise that the requirement that a person’s liberty may not be deprived in an arbitrary fashion.”  

According to rule 11(b) of the UN Regulations for the Protection of Juveniles Deprived of their Liberty, which defines deprivation of liberty as any form of detention or imprisonment or the placement of a person in another public or private setting from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.”

At paragraph 37, MacDonald J further stated that the ECtHR most frequently regarded limitations on access to or use of telephones in the context of the right to respect for private and family life under Article 8 of the ECHR rather than under Art 5 of the ECHR (1).

Applying these principles, MacDonald J determined:

45. […] for P, in common with many other young people of her age, her mobile phone and other devices constitute a powerful analogue for freedom, particularly in circumstances where she is at present confined physically to her placement. Within this context, I accept that the possession and use of her mobile phone, tablet and laptop, and her concomitant access to social media, is likely to equate in P’s mind to “liberty” broadly defined as the state or condition of being free.

However, MacDonald J continued:

However, this court is concerned with the meaning of liberty under Art 5(1) of the ECHR. Whilst I recognise that the Convention is a living instrument, which must be interpreted in the light of present-day conditions (see Tyrer v United Kingdom (1978) 2 EHRR 1 at [31]), over an extended period of time the Commission and the ECtHR have repeatedly made clear that Art 5(1) is concerned with individual liberty in its classic sense of the physical liberty of the person, with its aim being to ensure that no one is dispossessed of their physical liberty in an arbitrary fashion. The Supreme Court proceeded on that formulation of the proper scope of Art 5(1) in Cheshire West.

That meant, in turn, that:

46. […] in my judgment the removal of, or the placing of restrictions on the use of, P’s mobile phone, tablet and laptop and her use of social media do not by themselves amount to a restriction of her liberty for the purposes of Art 5(1). On the evidence currently before the court those restrictions do not act to deprive P of her physical liberty, but rather act to restrict her communication, so as to ensure her physical and emotional safety. The evidence set out earlier in this judgment demonstrates that the effect of those restrictions is to limit P’s communications with peers who might encourage her to engage in bad behaviour, with strangers who may present a risk to her and with family and friends when she is in a heightened emotional state. Within this context, the restrictions on the use of P’s devices for which the local authority seek authorisation do not, in my judgment, by themselves constitute an objective component of confinement of P in a particular restricted place for a not negligible length of time. In the circumstances, whilst they are steps at times taken without P’s consent and are imputable to the State, those restrictions do not, by themselves, meet the first Storck criterion.

The local authority contended that the limitations placed on her devices were a necessary component of P’s confinement (in circumstances where she was under other, more obvious restrictions such as supervision and physical restraint to protect from harm). While MacDonald J acknowledged that they occasionally might be considered to be a component of a regime of ongoing surveillance and control, he emphasised that they did not act to limit her physical liberty. Instead, their results were:

65 […] to prevent P broadcasting online indiscriminately, to prevent contact from those advising her how to frustrate steps the placement takes to stop her from harming herself and others and to prevent her sharing details online with those who may pose a risk to her and restricting contact with those against whom she has alleged abuse. There is no suggestion in the evidence currently before the court that those restrictions constitute a necessary element of the deprivation of P’s physical liberty or of the manner of implementation of that deprivation of liberty. For example, the evidence before the court does not suggest that the restrictions on the use of P’s mobile phone, tablet and laptop and use of social media are required to ensure the effectiveness of the current measures that do operate to prevent her from leaving the placement, or that without those restrictions the current measures that operate to prevent her from leaving the placement would be rendered ineffective.

In these circumstances, in my judgment the restrictions in respect of P’s phone, tablet and laptop and on the use of social media do not, even when considered in the context of the other elements of the other restrictions for which authorisation is sought, constitute an objective component of confinement of P in a particular restricted place for a not negligible length of time. Accordingly, it would in my judgment be wrong to authorise them under the auspices of a DOLS order simply because they form part of the total regime to which P is currently subject in her placement.

By this point, some people may be asking why MacDonald J was so eager to emphasise that P’s freedom was not impinged upon by the constraints on her technology. A crucial response he provided was at paragraph 50:

The difference between deprivation of and restriction upon liberty is one of degree or intensity and not one of nature or substance. But there is nonetheless a difference and that difference can have consequences. As I have noted above, restrictions of the type being imposed on P with respect to the use of her mobile phone, tablet and laptop, and concomitant limitations on her access to social media, are most naturally characterised as an interference with her Art 8 right to respect for private and family life. When considering them as such, before a court could endorse that interference it would have to be satisfied that that interference was necessary and proportionate, pursuant to Art 8(2). If however, those steps were instead to be considered and endorsed by the court by reference to Art 5(1), the exercise under Art 8(2) would be bypassed in respect of steps that constitute an interference in an Art 8(1) right. It is important that the court be careful not to allow its jurisdiction to make orders authorising the deprivation of a child’s liberty by reference to Art 5(1) to spill over into authorising steps that do not constitute a deprivation of liberty for the purposes of Art 5(1), particularly where those steps might constitute breaches of different rights, which breaches fall to be evaluated under different criteria. It may well be that one of the reasons for ECtHR adopting the narrow interpretation of word ‘liberty’ under Art 5(1) in cases such as Engel v Netherlands, limiting it to the classic concept of physical liberty, was to reduce risk of the Art 5 exceptions resulting in a de facto interference with other rights, without proper reference to the content of those other rights.

It was necessary to develop an alternative method of authorising the limits in light of MacDonald J’s conclusion (assuming that such restrictions were justified). This alternate path, according to him, involved the local authorities exercising shared parental responsibility under section 33(3)(b) of the Children Act 1989 on behalf of P, who was the subject of a final care order.

Although MacDonald J ruled that a local authority would often not need a judge’s approval to put restrictions on the use of devices to safeguard a child from a danger of serious injury, he did accept the following at paragraph 60:

circumstances that contemplate the use of physical restraint or other force to remove a mobile phone or other device from a 16 year old adolescent, even in order to prevent significant harm, is a grave step that would require sanction by the court, rather than simply the exercise by the local authority of its power under s.33(3)(b) of the 1989 Act, not least because such actions would likely constitute an assault. I am further satisfied that, in an appropriate case and where an order under Part II of the Children Act 1989 would not be available where a child is subject to a final care order, it would be open to the court to grant the local authority permission to apply for an order under the inherent jurisdiction, separate to any order authorising deprivation of liberty, that declares lawful the steps required to effect by restraint or other reasonable force the removal from a child of his or her devices, provided it is demonstrated that their continued use is causing, or risks causing, significant harm and provided that the force or restraint used is the minimum degree of force or restraint required.

The threshold for making such an order – separate from the order authorising deprivation of liberty – would be high, according to MacDonald J, requiring “cogent evidence that the child is likely to suffer significant harm if an order under the inherent jurisdiction in that regard is not to be made” (paragraph 71).

The decision of MacDonald J. is a useful reminder of the limits of the concept of deprivation of liberty: liberty, in this context, is not another word for autonomy. According to Lady Hale in Secretary of State for the Home Department v JJ [2007] UKHL 45 (paragraph 57):

My Lords, what does it mean to be deprived of one’s liberty? Not, we are all agreed, to be deprived of the freedom to live one’s life as one pleases. It means to be deprived of one’s physical liberty […] And what does this mean? It must mean being forced or obliged to be at a particular place where one does not choose to be: […] But even that is not always enough, because merely being required to live at a particular address or to keep within a particular geographical area does not, without more, amount to a deprivation of liberty. There must be a greater degree of control over one’s physical liberty than that.

In passing, it may be of interest that, while Lady Hale was clear in 2007 that deprivation of liberty included an element of overbearing of the person’s will, in 2014 after Cheshire West it was decided that a lack of MCA-capacity to consent to confinement was sufficient, even if the person appears to be content. If you want to go down that rabbit hole, you might be interested in this paper.

It is interesting and reassuring to note that MacDonald J reached the same conclusions about the human rights allocation of device restrictions as Mostyn J did some years ago in the Court of Protection context in J Council v GU & Ors [2012] EWCOP 3531. The fact that the judgement did not refer to this case is most likely due to the fact that parallel furrows appear to be being ploughed by those concerned with deprivation of liberty in the context of children and adults (for better or, we dare to suggest, for worse).

Regardless, MacDonald J’s observations about the need to be clear about which rights are at stake, and what considerations must be taken into account in determining who can determine and on what basis whether or not the interference is lawful, are trenchant. They are also relevant in DoLS territory in terms of adults. They emphasise the fact that restrictions that are not specifically aimed at restricting a person’s physical liberty are not permissible under DoLS. Such restrictions, whether on devices or on contact, must be justified by referring to the (thin) legal cover available here under s.5 MCA 2005, or – more likely – must be brought before the Court of Protection so that the court can determine whether (a) such restrictions are in the best interests of the person; and (b) whether they are necessary and proportionate to satisfy Article 8(2) ECHR.