The High Court in this case was being asked to determine whether a situation where a child is in care and the Local Authority want to restrict their access to their mobile phone falls within a DEPRIVATION OF LIBERTY or an exercise of parental responsibilty.
I.e is it an action that requires the Court to sanction that restriction, or can a Local Authority do it under section 33 of the Children Act 1989?
Manchester City Council v P (Refusal of restrictions on mobile phone) 2023
On the facts of this case, P is 16 and vulnerable. She functions at the age of a 7 year old. She had a lot of periods of going missing and during those periods became the victim of Child Sexual Exploitation and sadly had a history of self-harming.
The Local Authority were asking the Court for permission for an arrangement that allowed them to withhold P’s mobile phone from her from 10pm at night to 8am, and for staff to be able to confiscate her mobile phone if her behaviour was escalating.
The legal debate in the case was as to whether those sort of restrictions on the use of a mobile phone were a deprivation of liberty, which have to be sanctioned by a Court, or whether the Local Authority were exercising Parental Responsibility.
Both the Local Authority and the Guardian in this case were saying that the confiscation of the phone was a restriction of liberty and thus needed Court sanction.
Here is what MacDonald J said about the submissions:-
On behalf of the local authority, Ms Whelan submits that such steps are an integral element of the continuous supervision and control and lack of freedom to leave that marks P out as being deprived of her liberty, having regard to the test articulated in Cheshire West and Chester Council v P  AC 896 in the context of the prior decisions of the ECtHR, including Storck v Germany 43 EHRR 96. Ms Whelan submits that the restrictions on P’s mobile phone (and the associated restrictions concerning her tablet, laptop and access to social media) amount to a deprivation of liberty for the purposes of Art 5(1) when viewed in their proper context, namely as an essential element of the restrictive regime that deprives P of her liberty, without which the regime restricting P’s liberty could not be effective (Ms Whelan conceded that the authority for the proposition that, cumulatively and in combination, the elements comprising the implementation of a measure can amount to a deprivation of liberty, namely Guzzardi v Italy (1980) 3 EHRR 333, was decided on very different facts).
In the circumstances, Ms Whelan submits that the act of removing or restricting use of her mobile phone, tablet and laptop and restricting her access to social media, constitutes a deprivation of P’s liberty and thus can be authorised by the court under its inherent jurisdiction where such a course is in P’s best interests. In that latter regard, Ms Whelan points to the evidence that, prior to the restrictions concerning her devices being in place, P was speaking to peers who encouraged P to show behaviours such as, shouting at staff, being verbally aggressive and demanding, was sharing her address with her friends, befriending individuals online who she may not know and, on 24 August 2022, speaking to a female who told P tactics for restricting holds designed to prevent her harming herself so she could escape from such holds.
On behalf of P, Miss Swinscoe submits that the argument advanced by the local authority is brought into even sharper relief in circumstances where for P, in common with most children of her generation, a mobile phone is an integral aspect of what she considers to be her liberty. Echoing Ms Whelan’s submission that, for P, her mobile phone is very much an avenue to the outside world, particularly whilst locked behind closed doors, Miss Swinscoe points to the fact that the restrictions about which P is particularly concerned in this case are those placed on her mobile phone and social media access. Within this context, and in circumstances where the ECHR is said to be a ‘living instrument’, Miss Swinscoe submits that the meaning of liberty for a young person today is very different to the meaning of liberty when Sir David Maxwell-Fyfe, First Earl of Kilmur, was overseeing the formulation of the ECHR at the end of the Second World War, as Chair of the Council of Europe’s Legal and Administrative Division. In this context, Miss Swinscoe submits that a restriction on the use of P’s mobile phone, tablet and laptop, and the concomitant restriction of her access to social media, fits within Lord Kerr’s formulation of the meaning of liberty in Cheshire West at  (emphasis added):
“While there is a subjective element in the exercise of ascertaining whether one’s liberty has been restricted, this is to be determined primarily on an objective basis. Restriction or deprivation of liberty is not solely dependent on the reaction or acquiescence of the person whose liberty has been curtailed. Her or his contentment with the conditions in which she finds herself does not determine whether she is restricted in her liberty. Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. Nor is it diminished by one’s lack of capacity.”
In the alternative, both the local authority and the Children’s Guardian contend that if the removal of, or the restriction of the use of, P’s mobile phone, tablet and laptop, and restriction of her access to social media, do not constitute a deprivation of liberty for the purposes of Art 5(1), in circumstance where s.8 is not available in respect of a child who is the subject of a care order, the court can in any event, where necessary, authorise such a course under its inherent jurisdiction in the best interests of P.
Ms Whelan did not seek to dispute the proposition that, in principle, it would be open to the local authority to regulate P’s use of her mobile phone by exercising its parental responsibility under the care order pursuant to s.33 of the Children Act 1989, albeit that Ms Whelan expressed some concern, where P is now 16 years old, with respect to resorting to s.33 of the 1989 Act without guidance from the court that this constitutes a legitimate course (in circumstances where the courts have in other cases demarcated the ambit of s.33 of the Act, for example in Re H (A Child)(Parental Responsibility: Vaccination)  EWCA Civ 664).
Ms Whelan submits, however, that where P refuses to co-operate with restrictions on her mobile phone, usually in times of emotional dysregulation where there is a risk that P will become violent, and where the use of her mobile phone is threatening her safety, for example by exposing her to contact with unknown individuals who may pose a risk of child sexual exploitation, it must remain open to the court to make an order under the inherent jurisdiction to remove or restrict the use of P’s devices in her best interests. Ms Whelan drew analogies with other cases in which the court utilises its inherent jurisdiction to impose steps upon a child designed to prevent the child suffering harm, for example were treatment is imposed on children suffering from anorexia nervosa (see Re C (Detention for Medical Treatment)  2 FLR 180). Ms Whelan submits that an order giving effect to the restrictions sought with respect to P’s mobile phone, tablet, laptop and access to social media would, in circumstances where their use presented a risk of significant harm to P, constitute a necessary and proportionate interference with P’s Art 8 rights having regard to the terms of Art 8(2).
On behalf of P, Miss Swinscoe submits that s.33 of the Children Act 1989 would operate to allow the local authority to regulate P’s use of her mobile phone in situations where P is co-operating. Miss Swinscoe points to the fact that whilst P wants to keep her mobile phone, she has been capable of agreeing that it is sensible to hand it to staff. Miss Swinscoe submits, however, that on the evidence before the court, the difficulty is when P becomes dysregulated and the local authority needs to restrict the use of her telephone against her refusal to co-operate in order to protect her safety, where there is clear evidence, Miss Swinscoe submits, that the use of the phone, and her other devices, by P can expose her to a risk of significant harm.
The Court was taken to a decision of the ECHR
In Guzzardi v Italy, a case concerning the conditions of remand on the Italian island of Asinara of a suspected Mafioso, one of the elements of implementation that appears, in combination with others, to have grounded a finding that a deprivation of liberty for the purposes of Art 5(1) had occurred was the requirement on the applicant to “inform the supervisory authorities in advance of the telephone number and name of the person telephoned or telephoning each time he wished to make or receive a long-distance call” (the other conditions being, in summary, to reside in a prescribed locality on the island; not to leave that area without notifying the authorities; to report to authorities twice a day when requested to do so; to be law abiding and not give cause for suspicion; not to associate with convicted persons; to obey a curfew; not to carry arms and not to frequent bars or nightclubs or attend public meetings). It is further of note that the restriction regarding telephone use was to prevent contact with other alleged criminals during a period of remand and that the applicant was liable to punishment by arrest if he failed to comply with that obligation. As conceded by the local authority during oral submissions, Guzzardi v Italy thus involved very different facts to those that are before this court.
The Court looked at the relevant statute and case law on deprivation of liberty, section 33 and inherent jurisdiction.
The decision paragraphs are set out at paragraphs 44-69, and are worth reading, but are probably too in-depth for the purposes of this blog.
What we are interested in chiefly is the decision, and it is this:-
In the circumstances, and for the reasons I have given, I refuse to sanction the removal of, or the restriction of the use of P’s mobile phone, tablet and laptop and her access to social media by way of an order authorising the deprivation of her liberty for the purposes of Art 5(1) of the ECHR. I shall instead, make a declaration that it is lawful for the local authority to impose such restrictions in this regard as are recorded in the order in the exercise of the power conferred on it by s.33(3)(b) of the Children Act 1989. Whilst I am satisfied that, were the evidence to justify it, it would be open to the court to grant an order under its inherent jurisdiction authorising the use of restraint or other force in order remove P’s mobile phone, tablet and laptop from her if she refused to surrender them to confiscation, the evidence currently before the court does not justify such an order being made. Finally, I am satisfied that the other restrictions sought by the local authority do constitute a deprivation of liberty for the purposes of Art 5(1) and that it is in P’s best interests to authorise that deprivation of liberty. I shall make an order in the terms of the order appended to this judgment.
Dicey considered the right to liberty to be one of the general principles of the Constitution (see Dicey, A V An Introduction to the Study of the Law of the Constitution (1885) 9th edn, MacMillan 1945, p 19). In R v Secretary of State for the Home Department ex p Cheblak  1 WLR 890, Lord Donaldson observed that “We have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms.” Within this context, it essential that the State adhere to the rule of law when acting to deprive a child of his or her liberty. This will extend to ensuring that an order lawfully depriving a child of his or her liberty does not act also to deprive that child of other cardinal rights without there being in place proper justification for such interference by reference to the specific content of those other rights.
Each case will fall to be determined on its own facts. However, I venture to suggest that it will not ordinarily be appropriate to authorise restrictions on phones and other electronic devices within a DOLS order authorising the deprivation of the child’s liberty. Further, it is to be anticipated that, in very many cases, any restrictions on the use of phones and other devices that are required to safeguard and promote the child’s welfare will fall properly to be dealt with by the local authority under the power conferred on it by s.33(3)(b) of the Children Act 1989. Only in a small number of cases should it be necessary to have recourse to an order under the inherent jurisdiction, separate from the order authorising the deprivation of liberty, authorising more draconian steps to restrict the child’s use of a mobile phone or other device and only then where there is cogent evidence that the child is likely to suffer significant harm if an order under the inherent jurisdiction in that regard were not to be made.
That is my judgment.
So it is something that the Local Authority can do under section 33 – it will be important as with any decision that the Local Authority make under s33 that they are properly consulting the child and parents, and properly recording their decision and the reasons for it.