The following Local Government guidance note Produced in partnership with Tim Spencer-Lane provides comprehensive and up to date legal information covering:
This Practice Note considers recent court decisions on whether a parent can consent to the confinement of their child which, absent valid consent, would amount to a deprivation of liberty.
Article 5 of the European Convention on Human Rights (ECHR) guarantees the right to personal liberty and provides that no one should be deprived of their liberty in an arbitrary fashion. The protection under Article 5 of the ECHR applies to those of all ages. Article 5(1)(e) of the ECHR permits the lawful detention of, among others, 'persons of unsound mind' in accordance with a procedure prescribed by law. Article 5 also requires certain safeguards to be provided to persons deprived of their liberty, including the right of access to speedy judicial proceedings to challenge the lawfulness of the detention.
The question of when a deprivation of liberty arises is therefore crucial. In the context of a person of 'unsound mind', the European Court of Human Rights has confirmed that a deprivation of liberty has three elements:
the objective element of confinement in a restricted space for a non-negligible period of time
the subjective element that the person has not validly consented to that confinement, and
the detention being imputable to the state
In most of the key cases, it is common ground that the second and
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