A hard road

The Children’s Hearings (Scotland) Act 2011 (Effect of Deprivation of Liberty Orders) Regulations 2022 remain temporary provisions to permit recognition of DoLs authorisations in respect of English looked after children if placed in Scotland, by treating the child as if he was subject to a compulsory supervision order for up to three months. The Children (Care and Justice) (Scotland) Act 2024 enables new regulations being made to replace the 2022 legislation and came into force on 1 September 2025. It may be that regulations to be made will tie in with the changes to secure accommodation legislation expected once the Children’s Wellbeing and Schools Bill is enacted in England & Wales.

The 2022 temporary regulations considerably reduced the complexities and expense that previously confronted English local authorities in these situations, although children’s rights organisations have remained uncomfortable about the disadvantages that the children faced being placed far from home, and outside the Scottish child protection system. This discomfort will only have increased since July 2024 when the rights set out in the United Nations Convention on the Rights of the Child were directly incorporated into Scots law.

Perhaps as a result of that discomfort, and with a steer from the Care Inspectorate that regulates them, the residential homes in Scotland that receive English children tend to prefer to provide care arrangements that do not involve restraint or deprivation of liberty, but to deploy – generally with success – more nurturing and persuasive techniques to support and protect their charges. Managers and staff often devise care arrangements involving techniques that satisfy English local authorities that there is unlikely to be a need for any High Court deprivation of liberty authorisations. 

A consequence of these developments has been an increasing number of limited ‘secure transport DoLs order’, which permit an English local authority to deprive the child’s liberty during his journey from a placement in England to the placement in Scotland, but provide for expiry of the order once the child has arrived. These can result from Children’s Services anticipating the need for a DoLs in a placement,but subsequently discovering that there is no need for a DoLs authorisation in Scotland.  This sequence of events can lead to a lack of social work analysis as to what is truly required, and a number of legal difficulties.

To start with, once a child subject to such a limited authorisation crosses the border into Scotland, he or she is to be treated as if subject to a compulsory supervision order, and the various obligations that fall upon the English local authority arise.  Yet there is no sign of these undertakings being given in any of the cases that I have seen and heard about from other practitioners.  Although paragraph 5(4)(a) of the 2022 Regulations disapplies the recognition of the deprivation of liberty order in Scotland once the authorisation ceases to have effect in England, it creates an uncertain legal status that may linger. 

In an attempt to get round that in a recent case, one English local authority found itself with a bizarre plan to change the transport arrangements for the child at the border with Scotland so that it no longer constituted a deprivation of her liberty for the remainder of the journey to the new placement.  This goes a stage further than the already curious suggestion that she required a DoLs to get her to the non-secure accommodation in Scotland, but was not going to require a DoLs during the several months that the local authority planned for the placement.

More pertinently, there must be a question mark over whether such transport arrangements really amount to a deprivation of liberty requiring High Court authorisation. 

• Being transported in a vehicle is not a placement or accommodation, just a means of conveying the child to the placement.
• There is often limited information or description of what arrangements amount to the ‘secure transport’, either in the order itself or within the supporting social work evidence.
• The doctrine of necessity surely permits a carer preventing a child getting out of the car while it is moving. The Children’s Homes (England) Regulations 2015 provides further reassurances for placement carers, and secondary Scottish legislation also assists in the event of ‘exceptional circumstances’.
• Most cars now automatically lock all the doors once they reach more than 10km/ph (and unlock in the event of an accident), to the extent that ensuring a 15-year-old cannot open the door while the vehicle is moving may amount to a more-or-less universal parenting technique.
• In all the cases where I have seen these very short-term orders, the parents have agreed the arrangements for the journey.
• The authorisations are sometime merely a measure to compel a teenager to co-operate with proposed placement arrangements, with the threat of use of force and constant supervision if he or she refuses to leave for the new placement. It must be questionable whether this is a proper use of the protective jurisdiction, and smacks of something akin to an anticipatory recovery order.

Given the general safety implications of a child travelling in a car, the ubiquity of auto-lock features, the legal requirement to use a seat belt, and expectations that a child would travel in a car accompanied by adults, the arrangements might be considered to be within the bounds of everyday parenting.  As Lord Kerr said in Cheshire West v P at paragraph 77-8:

"77 The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.

78 All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.”

Of course, the child is unlikely to spend the entire journey to Scotland inside the car.  Most will have to involve rest breaks, where the risk of absconding or of harm might be more real.  But motorway service stations, where rest and toilet breaks are most likely to be taken, do not present as obvious opportunities for a child to abscond in order to avoid being transported to a new placement.  They are generally busy places, self-contained, not in urban areas, and bordered by the motorway and open spaces in unfamiliar territory.  It is far from an unreasonable or arbitrary decision for any parent to seek to ensure that their child is accompanied while at a service station, but also difficult to envisage to where they might ‘run’.

Taking its lead from one of the key indicators identified in Guzzardi v. Italy (1980) ECHR 5, the Supreme Court’s ‘acid test’ in Cheshire West v P stipulates that ECHR Article 5 might be breached where the deprivation of liberty is for a ‘not negligible period of time’.  At least two Strasbourg decisions show that in certain circumstances this can include periods of less than an hour.

• In Shimovolos v. Russia, no. 30194/09 ECHR 2011 the Court decided that a person held at a police station for no more than 45 minutes amounted to a deprivation of liberty. The applicant had not been suspected of any offence, and had been included on a police database of ‘potential extremists’ solely on the basis that he was a human rights activist. The detention was considered arbitrary and unlawful.
• The Court noted in Gillan and Quinton v. the United Kingdom, no. 4158/05, ECHR 2010 that a stop not exceeding 30 minutes for a search of persons near a demonstration was considered indicative of a deprivation of liberty, given that they were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. It was the element of coercion that was indicative of a deprivation of liberty. Ultimately, the Court was required to determine the Article 5

But these scenarios appear quite different to a teenager being accompanied around a motorway service station in order to have a toilet break, stretch his legs and perhaps get a drink or a snack during a long journey to a new placement; and, more pertinently, to a new placement where his liberty is not – on the agreed facts of these cases – going to be deprived. 

• Apply the Guzzardi principle that the difference between restricting a person and depriving them of their liberty is one of degree or intensity rather than of nature and substance.
• Consider Austin v UK [2012] ECHR 459 where the European Court accepted that ‘kettling’ three innocent bystanders for around seven hours had to take into account the practical difficulties of policing in modern societies: Article 5 could not be interpreted in such a way as to make it impracticable for the police to fulfil their duties, provided the individual is protected from arbitrariness.
• The ECHR in Bouamar v. Belgium, no. 9106/80 1988, considered that Article 5 does not preclude an interim custody measure being used as a preliminary arrangement to a regime of supervised education, even where that interim measure itself does not involve any element of supervised education.

50.  "Lawfulness", however, also implies that the deprivation of liberty is in keeping with the purpose of the restrictions permissible under Article 5 § 1 (art. 5-1) of the Convention (see paragraph 47 above).

The Court notes that the confinement of a juvenile in a remand prison does not necessarily contravene sub-paragraph (d) (art. 5-1-d), even if it is not in itself such as to provide for the person's "educational supervision". As is apparent from the words "for the purpose of" ("pour"), the "detention" referred to in the text is a means of ensuring that the person concerned is placed under "educational supervision", but the placement does not necessarily have to be an immediate one. Just as Article 5 § 1 recognises - in sub-paragraphs (c) and (a) (art. 5-1-c, art. 5-1-a) - the distinction between pre-trial detention and detention after conviction, so sub-paragraph (d) (art. 5-1-d) does not preclude an interim custody measure being used as a preliminary to a regime of supervised education, without itself involving any supervised education. In such circumstances, however, the imprisonment must be speedily followed by actual application of such a regime in a setting (open or closed) designed and with sufficient resources for the purpose.

Account must be taken of a whole range of criteria such as type, duration, effects and manner of implementation; age, maturity and parental responsibility will all be important factors. A toilet break should only take a few minutes, a negligible period of time.  An opportunity to ‘stretch legs’ around the service station could well be regarded as quite the opposite of a deprivation of liberty, being respite from being strapped and locked in and a car for several hours, even if the child is accompanied at all times by the supervising adult(s).  And to where, from a service station, will a child abscond?

A scenario more likely to raise human rights issues is where it becomes necessary to force the child against his will into the car, to start or continue the journey to the placement in Scotland.  Some might consider this to be a matter of parenting, but there ought to be strong evidence of this as a likely scenario in order to secure High Court authorisation.  But if that is the evidence then he would seem a poor candidate to be heading to a placement where there will be no deprivation of liberty order in place and merely confidence that his determination to be elsewhere can be managed by verbal persuasion alone.

There are cases involving young persons who crave and actively seek out high risk situations, which might include the perils of a nearby fast road.  Physical restraint might be deployed as a matter of necessity to prevent the young person from harming himself or others, or getting into a dangerous situation, as with any teenager.  Again, they would seem to be unlikely to suitable for their journey’s destination of a less supervised or unsupervised placement in Scotland.  But it is easy to see why Children’s Service might prefer to be cautious and place the matter before the High Court while there is next to no judicial guidance in relation to ‘secure transport DoLs cases’.

Justin Gray is a barrister at Trinity Chambers, Newcastle upon Tyne, and a door tenant at Harcourt Chambers in London.