Is removing a mobile phone and access to social media a deprivation of a child’s liberty, or just something that a parent should be entitled to do? Mr Justice Macdonald gives us his answer in Manchester City Council v. P (Refusal of restrictions on mobile phone) [2023] EWHC 133.
The case concerned P, who was 16 and has a cognitive age of somebody half that. It was said that P lived in an unhappy and abusive home. Her unhappiness caused her behaviour to become challenging. This was made worse by P’s neurodivergent diagnosis of ADHD. P started to run away from the placements she was in and tried to hurt herself several times. As a vulnerable child, it was thought that P was preyed on by gangs who may have sexually exploited her. The local authority decided that P needed to be kept in a placement with special limitations on her liberty, and so applied to the court.
In better days, P might have been kept in what is known as secure accommodation. Secure accommodation is special, regulated placements for children with elevated needs that require confinement to keep themselves or others safe. We do not live in better days; the child protection system is under-resourced in nearly all its aspects, and secure placements are no exceptions to this. Demand far outstrips supply. These are not placements for naughty kids; these are placements for the most damaged and vulnerable children in our society. I know from another case of mine that the present waiting list for secure placements is 60: that is 60 extremely vulnerable children in England and Wales who are left wanting, because of a simple lack of resources.
This poverty of resources has caused the courts to deploy Deprivation of Liberty (or DOL) authorisation, a mechanism whereby makeshift and often unregistered arrangements are scrutinised by the High Court and given the veneer of lawfulness: by the court declaring that holding a child in those circumstances is ‘necessary’, and therefore does not amount to a breach of the child’s human right to liberty and security of person. DOL should probably stand for ‘Driving Our Lifeboat’, with the Court frequently having to rescue otherwise unlawful situations.
The High Court hands down a constant stream of decisions on DOL cases on a weekly basis. The National DOLS Court was set up to keep track of the number of cases that require this makeshift solution, and has become a modern-day Pandora’s Box. That is not to criticise the Court – that is responding to a crisis – or the local authorities coming up with the solutions. What is one to do if there is no proper placement?
Not even the Supreme Court’s warning, given some two years ago in Re T (A Child) [2021] UKSC 35, has been heeded:
“I agree with Lady Black that recourse to the inherent jurisdiction in the face of this scandalous lack of provision should be a temporary measure… The appropriate permanent solution is the provision of appropriate accommodation. I add my name to the list of judges who have called attention to this issue which is a scandal containing all the ingredients for a tragedy.”
Thus, Manchester City Council applied to Court to authorise some arrangements to keep P safe. Part of the arrangement involved restrictions on the time that P could use a mobile phone and monitoring how she used it.
In this context, that Manchester City Council considered a restriction on access to the internet to be something depriving P of her liberty – affecting her fundamental right to be free – is understandable.
The hit Netflix/Channel 4 series Black Mirror was so-called from the screen of our everyday devices – TVs, tablets, smartphones, laptops – when they are turned off, leaving only a black surface reflecting our shadows. The black mirror is at the centre of our daily life in 2023: we use WhatsApp groups more than we see our friends, we speak to our colleagues on Zoom, we transact with our mobile phones, banking apps and Adobe Sign. Life without the internet or a mobile phone relegates us to the status of Father’s Ted and Dougal, holding signs saying “Down with this sort of thing” and “careful now” amidst an unstoppable tide of technology that facilitates our daily lives. It is easy to see how it was thought that removing a mobile phone was the digital equivalent of tying somebody’s legs together and putting them in a cell. The black mirror is, so said the judge, a “powerful analogue for freedom.”
But what does it really mean to have liberty, to be free? This was the question that the judge answered in glorious technicolour. Do read the case; it’s a characteristically accessible and thoughtful decision by Mr Justice MacDonald.
The starting point is Article 5 of the European Convention on Human Rights, the instrument that defines our fundamental rights as people in this country. Article 5(1) ECHR protects our right to liberty and security of person. The judge reflected that the European Court of Human Rights has been clear that this means a person’s physical liberty, in other words, the right against being locked up indiscriminately. All of the case law – the so-called ‘acid test’ of whether liberty is being deprived in law – has been formulated on that basis.
The judge also recognised that the ECHR is a ‘living instrument’ – something that should be looked at with reference to the modern-day standards and that whether something is a deprivation of liberty depends on a whole host of factors such as what type of restrictions are in place, for how long and to what effect. Fundamentally, the restrictions on P’s mobile phone use did not act to restrict P’s physical liberty. The judge said:
“The effect of those restrictions is to prevent P broadcasting online indiscriminately, to prevent contact from those advising her how to frustrate steps the placement takes to stop her from harming herself and others and to prevent her sharing details online with those who may pose a risk to her and restricting contact with those against whom she has alleged abuse. There is no suggestion in the evidence currently before the court that those restrictions constitute a necessary element of the deprivation of P’s physical liberty or of the manner of implementation of that deprivation of liberty. For example, the evidence before the court does not suggest that the restrictions on the use of P’s mobile phone, tablet and laptop and use of social media are required to ensure the effectiveness of the current measures that do operate to prevent her from leaving the placement, or that without those restrictions the current measures that operate to prevent her from leaving the placement would be rendered ineffective.”
Instead, the judge thought about the reason why the restrictions were being proposed. This was to prevent communication with others who might encourage P to behave badly, or run away, or strangers who might prey on her in a difficult moment. There was a line to be drawn between liberty being deprived, and liberty merely being restricted. The judge thought that whilst this may well be an interference in P’s right to a private life, it was not a deprivation of liberty in the fundamental sense.
The judge, instead, thought that Manchester City Council – who shared parental responsibility to P through a care order – could remove and restrict P’s telephone by exercising its parental responsibility, as any parent may be allowed to do:
“The extent to which a parent will be required to control, regulate and supervise the use of their child’s phone will, of course, change as the child gets older. Childhood is not a single, fixed and universal experience between birth and majority but rather one in which, at different stages, in their lives, children require differing degrees of protection, provision, prevention and participation. As a child gets older, decisions taken in the exercise of parental responsibility will increasingly give way to decisions taken by the child autonomously.
However, even for a young person aged 16, it would not be unreasonable in my view for a parent who has become aware that the use by their 16 year old child of his or her mobile phone is placing them at risk of significant harm, for example through child sexual exploitation (because it is apparent that they are being groomed online), or through self harm (because it is apparent that they are watching self harm content on social media), or through criminal prosecution for selling drugs (because it is apparent they are in contact with an OCG), to seek to address that situation by removing or restricting the use of their teenager’s mobile phone and other devices in the exercise of their parental responsibility. In circumstances where the use of a mobile phone, tablet or laptop becomes a source of significant harm to the child, it is surely a proper exercise of parental responsibility for a parent to seek to protect that child by removing by way of confiscation, or restricting the use of, such devices as a means of protecting the child from exploitation, harm or abuse, even where that child is an adolescent, and in particular where that child is a vulnerable adolescent who may well be less mature and less capable of making autonomous decisions on these matters. Restrictions short of confiscating the phone might take the form of refusing to pay the bill for the phone or for top-ups or switching off or otherwise restricting access to Wi-Fi.”
The judge finished by explaining that normally, removing the black mirror was something that can therefore ordinarily be done by a parent (or a local authority exercising parental responsibility), and does not need its own application. There may be a small number of cases where the means of removing the mobile phone or restrictions do require deprivation of physical liberty, but P’s case was not one of them.
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