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New judgments on deprivation of liberty and rights under art. 5 of ECHR

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Alex Laing of Coram Chambers acted on two cases, resulting in important new judgments on the deprivation of liberty and rights under article 5 of the European Convention on Human Rights (ECHR).

Deprivation of liberty is a new and increasing focus in children law. It occurs when the State imposes significant and unremitting restrictions on a child’s freedom and movement, without her consent. It is, therefore, an interference with that child’s fundamental rights under article 5 of the European Convention on Human Rights.

Today, two judgments of Mr Justice Mostyn, sitting in the Family Division of the High Court, have been reported. Those judgments are in a case concerning a 15-year-old transgender child. That chid is deprived of her liberty by the local authority in whose favour there is a care order. She has been held in a number of placements that impose significant restrictions on her liberty: including not being allowed to leave, locked doors and windows, no money, no mobile phone and frequent checks throughout the day and night. These orders have been approved by the courts as being in her best interests and necessary to safeguard her welfare.

In Mostyn J’s two judgments, his Lordship has held that “consent” – in terms of a child consenting to these restrictions on her liberty – must be a consent that endures. That marks a turning point in the law. It is a break with the law as it previously stood, as set out by Mr Justice Keehan, which was that consent did not have to be thought to last a significant period of time.

Mostyn J’s two judgments are:

http://www.bailii.org/ew/cases/EWHC/Fam/2018/576.html and http://www.familylawweek.co.uk/site.aspx?i=ed189367

To the child at the centre of this case, the judgments are wrong. She, as a 15-year-old, believes that she is able to consent to the restrictions on what she does. She does not accept that her consent will not last. It might be said that Mostyn J has stripped her of her autonomy and right to make important decisions in her own life.

The child has been granted permission to appeal both judgments by Peter Jackson LJ, sitting in the Court of Appeal. That appeal will be the first time that the Court of Appeal has looked at this difficult issue of consent in this context within article 5 of the European Convention on Human Rights: what does it mean and how long must it last?

The urgent appeal will be heard shortly.

Alex Laing, instructed by Emine Mehmet of Duncan Lewis, represents the child.

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