Increasing concern has been raised about a small but highly vulnerable number of children and young people who are deprived of their liberty in various settings in England and Wales – including in secure children’s homes – and the lack of information available about them.
There are many circumstances where the care and support provided to a child or young person can give rise to a deprivation of liberty – such as where arrangements are put in place to protect a child or young person vulnerable to criminal or sexual exploitation, to prevent a child or young person with mental health problems from harming themselves, or to provide support to an autistic child or young person who becomes physically and verbally aggressive when distressed. Considering whether such care arrangements give rise to a deprivation of liberty is fundamental to upholding the rights of that child or young person. If they give rise to a deprivation of liberty, legal authority must be obtained.
A number of legal mechanisms can be used to authorise a child or young person’s deprivation of liberty depending on their age, their needs and where they will be placed. Unlike adults, there are circumstances where children and young people’s parents (and others with parental responsibility) can make decisions on behalf of their child. A question for the courts has therefore been whether this parental decision-making role is relevant to determining whether a child or young person is deprived of their liberty, and if so, how.
Recent decisions have provided greater clarity on this question and the factors that give rise to children and young people’s deprivation of liberty. However, as explained below, the supreme court’s decision in Re D (A Child)  UKSC 42 has created a marked difference in approach between children aged under 16, and those aged 16 and 17.
This briefing paper reflects on the circumstances giving rise to a child or young person’s deprivation of liberty and summarises the legal mechanisms for authorising this.