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Hendrick J: A Practical Guide to
Deprivation of Liberty Orders for Child

A Practical Guide to Deprivation of Liberty Orders for Children and Young People in the Family Court and Court of Protection

When arrangements are made for someone, in their best interests, that amount to a deprivation of their liberty - for example placing someone in a care home against their wishes - how does the law protect their rights?


The law in this vital area has been a mess. In 2014, a parliamentary committee described the current legal framework - the "Deprivation of Liberty Safeguards" (DoLS) - as not fit for purpose, and that was before a Supreme Court judgment (Cheshire West) just a few days later meant that the system has been overwhelmed with vastly more cases than it was built or resourced for.


In 2019, legislation was passed with the bare bones of a new system, the Liberty Protection safeguards (LPS), to replace DoLS. But despite a consultation in 2022 on a draft Code of Practice which added some detail, it has now been announced that the LPS will not be implemented before the next general election (expected to be in late 2024), and so in practice may well never be implemented at all.


Without those long awaited reforms, we will still have to work with the old system, and all the problems it had that LPS was supposed to fix, notably:

That DoLS does not apply beyond care homes and hospitals, and so anyone deprived of their liberty in other settings, such as their own family home, or supported living, can only have this authorised by a court order;
Similarly, DoLS only applies over the age of 18, but this leaves a gap for 16-17 year olds where, again, court orders are needed to authorise any deprivation of liberty, as the courts have only recognised parental consent to avoid a deprivation of liberty where the child is under 16; and
Even where the DoLS system does apply, over 18 and in care homes and hospitals, there is a colossal mismatch between the system's resources and the workload, with backlogs of a year or more for authorisations to be processed, and tens of thousands of people unlawfully deprived of their liberty.




This book will look at:

The background and context to the law on deprivation of liberty
Article 5 of the European Convention of Human Rights
The Bournewood case and the birth of DoLS
Cheshire West, the definition of a deprivation of liberty, and how this has applied in a range of settings from the family home to residential care and hospital
How DoLS works in practice, including the key safeguards
Deprivation of liberty for children and young people
Court applications for deprivation of liberty in the community
The interface between DoLS and the Mental Health Act
Consequences and compensation for an unlawful DoL
The Law Commission's review of DoLS, the evolution of the LPS and how it would have worked, and the prospects of reform now; and
Making the best of the system we have for now.




ABOUT THE AUTHOR


Ben Troke is a solicitor and a mediator with 25 years' experience working in health and social care, acting for the NHS and private sector providers all over the country. His particular interest is in decisions about mental capacity, medical treatment and deprivation of liberty, and he regularly deals with urgent applications to court in emergency situations.


Ben is independently rated as one of the leading practitioners in the country in the Court of Protection. He currently sits on the Law and Ethics Policy Unit of the Faculty of Intensive Care Medicine, and the Law Society's Mental Health and Disability Committee, and has a decade of experience of sitting on the ethics of clinical practice committee of a large acute NHS Trust.


Ben is a regular speaker at conferences nationwide and often provides training, in person and online.

A Practical Guide to the Law of Deprivation of Liberty

This open access book explores the High Court's powers under its inherent jurisdiction and wardship in relation to children and incapacitous and vulnerable adults. The book introduces the inherent jurisdiction and investigates its place in the modern law. Part 1 provides a comprehensive history of the inherent jurisdiction, before giving a detailed account of the core principles and procedure applicable today, and comparing the approaches taken in Scotland, Ireland, Canada, Australia and New Zealand. Part 2 considers the court's use of its inherent jurisdiction in specific categories of case, including child abduction, medical decision-making about children, child protection, incapacitous and vulnerable adults. Despite its ancient roots, the inherent jurisdiction is relied on by High Court judges on a daily basis, in both everyday and cutting-edge cases. This book argues that the court's approach to some of these cases is justified, but that judges often make unnecessary and inappropriate use of the inherent jurisdiction. Through its critical examination of the modern use of wardship and the inherent jurisdiction, the book is essential reading for practitioners and researchers working in this field. The ebook editions of this book are available open access under a CC BY-NC 4.0 licence on bloomsburycollections.com.

This open access book explores the High Court’s powers under its inherent jurisdiction and wardship in relation to children and incapacitous and vulnerable adults.

The book introduces the inherent jurisdiction and investigates its place in the modern law. Part 1 provides a comprehensive history of the inherent jurisdiction, before giving a detailed account of the core principles and procedure applicable today, and comparing the approaches taken in Scotland, Ireland, Canada, Australia and New Zealand. Part 2 considers the court’s use of its inherent jurisdiction in specific categories of case, including child abduction, medical decision-making about children, child protection, incapacitous and vulnerable adults.

Despite its ancient roots, the inherent jurisdiction is relied on by High Court judges on a daily basis, in both everyday and cutting-edge cases. This book argues that the court’s approach to some of these cases is justified, but that judges often make unnecessary and inappropriate use of the inherent jurisdiction. 

Through its critical examination of the modern use of wardship and the inherent jurisdiction, the book is essential reading for practitioners and researchers working in this field.

The ebook editions of this book are available open access under a CC BY-NC 4.0 licence on bloomsburycollections.com.

Wards of Court and the Inherent Jurisdiction

While in the past family life was characterised as a "haven from the harsh realities of life", it is now recognised as a site of vulnerabilities and a place where care work can go unacknowledged and be a source of social and economic hardship. This book addresses the strong relationships that exist between vulnerability and care and dependency in particular contexts, where family law and social policy have a contribution to make. 

A fundamental premise of this collection is that vulnerability needs to be analysed in a way that gets at the heart of the differential power relationships that exist in society, particularly in respect of access to family justice, including effective social policy and law targeted at the specific needs of families in mutually dependent caring relationships. It is therefore crucial to critically examine the various approaches taken by policy makers and law reformers in order to understand the range of ways that some families, and some family members, may be rendered more vulnerable than others. 

The first book of its kind to provide an intersectional approach to this subject, Vulnerabilities, Care and Family Law will be of interest to students and practitioners of social policy and family law.

While in the past family life was characterised as a "haven from the harsh realities of life", it is now recognised as a site of vulnerabilities and a place where care work can go unacknowledged and be a source of social and economic hardship. This book addresses the strong relationships that exist between vulnerability and care and dependency in particular contexts, where family law and social policy have a contribution to make. A fundamental premise of this collection is that vulnerability needs to be analysed in a way that gets at the heart of the differential power relationships that exist in society, particularly in respect of access to family justice, including effective social policy and law targeted at the specific needs of families in mutually dependent caring relationships. It is therefore crucial to critically examine the various approaches taken by policy makers and law reformers in order to understand the range of ways that some families, and some family members, may be rendered more vulnerable than others. The first book of its kind to provide an intersectional approach to this subject, Vulnerabilities, Care and Family Law will be of interest to students and practitioners of social policy and family law.

Vulnerabilities, Care and Family Law

This open access book explores the High Court's powers under its inherent jurisdiction and wardship in relation to children and incapacitous and vulnerable adults.

The book introduces the inherent jurisdiction and investigates its place in the modern law. Part 1 provides a comprehensive history of the inherent jurisdiction, before giving a detailed account of the core principles and procedure applicable today, and comparing the approaches taken in Scotland, Ireland, Canada, Australia and New Zealand. Part 2 considers the court's use of its inherent jurisdiction in specific categories of case, including child abduction, medical decision-making about children, child protection, incapacitous and vulnerable adults.

Despite its ancient roots, the inherent jurisdiction is relied on by High Court judges on a daily basis, in both everyday and cutting-edge cases. This book argues that the court's approach to some of these cases is justified, but that judges often make unnecessary and inappropriate use of the inherent jurisdiction. 

Through its critical examination of the modern use of wardship and the inherent jurisdiction, the book is essential reading for practitioners and researchers working in this field.

The ebook editions of this book are available open access under a CC BY-NC 4.0 licence on bloomsburycollections.com.

This book provides a practical overview to enable practitioners working within the family law system to properly address the issue of expert evidence when it comes to proceedings concerning children. The rules and case law principles are considered, as well as providing a specialist chapter on areas relating to 1980 Hague Convention, inherent jurisdiction, private and public law proceedings.The book aims at providing practitioners with an overview of key principles and strategy thinking when it comes to experts, including tips on preparing, advancing and ultimately challenging expert evidence when necessary.ABOUT THE AUTHORMani Singh Basi is a barrister at 4PB. He is a specialist in family law disputes relating to children, particularly in matters with an international dimension. He regularly appears in complicated cases in the High Court and the Court of Appeal. Mani is an award winning barrister, having won the 2025 LexisNexis International Family Lawyer of the Year award, as well as previously winning the 2024 Legal Personality of the Year award (LexisNexis), the 2024 Legal Aid Barrister of the Year award (Legal Aid Practitioners Group), the 2023 Family Law Junior Barrister of the Year award (LexisNexis) and 2022 Family Law Commentator of the Year award (LexisNexis).CONTENTSChapter One - An Introduction to Expert EvidenceChapter Two - Expert Evidence: Key PrinciplesChapter Three - Expert Evidence in 1980 Hague Convention ProceedingsChapter Four - Expert Evidence in Inherent Jurisdiction ProceedingsChapter Five - Expert Evidence in Public Law ProceedingsChapter Six - Expert Evidence in Private Law Proceedings

A Practical Guide to Expert Evidence in Proceedings Concerning Children

A Practical Guide to Deprivation of Liberty Orders for Children and Young People in the Family Court and Court of Protection

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