Liverpool City Council v SG & Ors  EWCOP 10
In a judgment that assists in resolving one issue that has been exercising practitioners (of all hues) since the judgment in Cheshire West, Holman J has confirmed that the Court of Protection has the power to make an order which authorises that a person who is not a child (ie who has attained the age of 18) may be deprived of his liberty in premises which are a children’s home as defined in s 1(2) of the Care Standards Act 2000 and are subject to the Children’s Homes Regulations 2001 (as amended).
The facts of the case are irrelevant to the point in issue, save that the individual in question, SG, was aged 19, and, whilst arrangements were made to move her into supported living, continued to be resident in the same children’s home as she was in prior to the age of 18, subject to a regime that indisputably amounted to a deprivation of her liberty. She lacked capacity to decide as to her residence and care arrangements.
The problem identified by the parties arose from the fact that the Children’s Homes Regulations 2001 provide at regulation 17A (Restraint) that:
'(1) Subject to paragraph (2) a measure of restraint may only be used on a child accommodated in a children’s home for the purpose of -
(a) preventing injury to any person (including the child who is being restrained);
(b) preventing serious damage to the property of any person (including the child who is being restrained); and
(c) in the case of a child accommodated in a children’s home which is a secure children’s home, preventing the child from absconding from the home,
and then only where no alternative method of preventing the event specified in sub-paragraphs (a) to (c) is available.'
In Guidance issued jointly by the President and OFSTED on 12 February 2014 entitled 'Deprivation of Liberty – Guidance for Providers of Children’s Homes and Residential Special Schools,' guidance that (as Holman J) had caused 'uncertainty' on the part of lawyers and providers as to the powers of the Court of Protection in this area – the following appeared at para :
' The Court of Protection should be reminded by the parties of the regulations that apply to children’s homes and residential special schools. The Court of Protection does not have the jurisdiction to require any home or school to act in breach of such regulations or to authorise any such breach. Accordingly, the Court of Protection should not make an order authorising a plan for the care and supervision involving the detention of a person, where to do so would involve the children’s home or a residential special school breaching the regulations that apply to it. If compliance with an order of the Court of Protection would involve such a breach of the relevant Regulations it cannot be relied on to justify breach of the Regulations or enforced in a manner that would involve such a breach.'
Holman J noted (at para ) that the paragraph contained no more than a legal truism. 'Regulations have the force of law, and no court, frankly, in any circumstances that I can readily think of, can authorise a person or body to act in a way that contravenes a regulation, or still less a statute, so as to be in breach of the regulation or statute. On a careful reading of that paragraph of the guidance, it ultimately says no more than that. The question, therefore, in any case is whether what the Court of Protection is otherwise being asked to authorise would amount to a “breach” of some regulation.'
Holman J was more circumspect about the accuracy of the subsequent paragraph in the Guidance, which provides as follows:
' All children’s homes must meet the Children’s Homes Regulations (2001). In this instance, the relevant regulations are:
Regulation 11 (Promotion of Welfare),
Regulation 17 (Behaviour, management and discipline) and
Regulation 17A (Restraint).
As restraint can only be used to prevent a child from leaving a secure children’s home, there is no purpose to be served in seeking an order of the Court of Protection authorising such restraint by a non-secure children’s home because the Court of Protection has no jurisdiction to order or authorise a breach of these regulations.'
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