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Family Law

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Court of Protection Practice and Procedure Conference 2016

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28 MAY 2012

WELFARE: RK (By Her Litigation Friend The Official Solicitor) v (1) BCC (2) YB (3) AK) [2011] EWCA Civ 1305, [2012] COPLR 146

(Court of Appeal, Thorpe, Gross LJJ, Baron J, 20 December 2011)

The 17-year-old young woman suffered from autism, ADHD and severe learning difficulties. She had been cared for at home by her parents for but when they felt they could no longer adequately care for their daughter she was moved to a private care home under s 20 of the Children Act 1989. The mother initiated proceedings in the Court of Protection to obtain declarations as to her capacity and best interests regarding her residence and arrangements for her health and social care needs.

The Official Solicitor raised the issue of whether the young woman's accommodation amounted to a deprivation of liberty. The judge held that the provision of accommodation to a child under s 20 of the Children Act 1989 would never amount to a deprivation of liberty within the terms of Art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. In particular the parents' authorisation of the restrictions on the young woman did not give rise to a deprivation of liberty. The Official Solicitor appealed.

The authorities established that a parent in the exercise of parental responsibility may authorise or impose restrictions on the liberty of their child providing they did not amount to a deprivation of liberty. The judge had been correct to determine that the young woman's liberty had not been deprived. Appeal dismissed.

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