Local authorities, care orders and consent to confinement
Alex Ruck Keene KC (Hon) analyses another striking decision from Lieven J.
Lieven J’s campaign against the decision of the Supreme Court in Cheshire West continues. In Re J: Local Authority consent to Deprivation of Liberty [2024] EWHC 1690 (Fam), she has held that a local authority can in the exercise of its ‘corporate’ parental responsibility, consent to the confinement of a child under 16 subject to a care order, so as to take the child’s circumstances out of the scope of Article 5 ECHR. At paragraph 19, she identified that:
The rationale for the court considering DoLs applications in circumstances such as this may be, as suggested in Cheshire West and subsequent cases, to ensure that safeguards are in place and there is court oversight of the process. Article 5 requires that any deprivation of liberty must be “in accordance with a procedure prescribed by law”. The Supreme Court in Re T (A Child) [2021] UKSC 35 held that the use of the High Court’s inherent jurisdiction fell within the “in accordance with law” requirement. However, the need for a legal process if there is a deprivation of liberty cannot itself be relevant to the substantive content of the right. If the LA can provide valid consent in J’s case, then there is no requirement for a DoLs order, whatever the possible benefits of “safeguards” of a court process, in this case the High Court DoLs List.
The local authority argued (albeit somewhat faintly) that it could not give such consent, basing itself on the clear statement to that effect by Keehan J in Re D (A Child) (Deprivation of Liberty) [2015] EWHC 3125:
29. Where a child is in the care of a local authority and subject to an interim care, or a care, order, may the local authority in the exercise of its statutory parental responsibility (see s.33(3)(a) of the Children Act 1989) consent to what would otherwise amount to a deprivation of liberty? The answer, in my judgment, is an emphatic “no”. In taking a child into care and instituting care proceedings, the local authority is acting as an organ of the state. To permit a local authority in such circumstances to consent to the deprivation of liberty of a child would (1) breach Article 5 of the Convention, which provides “no one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”, (2) would not afford the “proper safeguards which will secure the legal justifications for the constraints under which they are made out”, and (3) would not meet the need for a periodic independent check on whether the arrangements made for them are in their best interests (per Lady Hale in Cheshire West at paragraphs 56 and 57).”
Lieven J considered that Keehan J’s analysis:
23. […] conflates two separate issues relevant to Article 5. For present purposes I accept that the first and third limbs of Storck are met, because the LA, or in fact its agent the care provider, does not allow him to leave the premises unaccompanied. Therefore the restrictions on J are imposed by the State. However, that does not mean that the LA, acting as the corporate parent under s.33 CA, cannot consent to that deprivation.
Lieven J considered s.33(b) CA 1989, and the observations of the Court of Appeal in Re H (Child) [2020] EWCA Civ 664 (a case about vaccination) that “some decisions are of such magnitude that it would be wrong for a local authority to use its power under s.33(3)(b) to override the wishes or views of a parent.” She considered that:
31. Although that case concerned a very different issue to the present, namely the giving of vaccinations, there is no obvious reason why the core test should not be the same. Namely, is the decision that the LA is being asked to make under s.33(3)(b) CA “of such magnitude” that it cannot be made by the LA, but rather must be made by the Court.
32. There is no doubt, as Lady Hale said, and is clear from Guzzardi, that the removal of an individual’s liberty is a significant infringement of their human rights and an important decision. However, in this, as in every other aspect of human rights law, context is all and it is necessary to consider the facts of the individual case.
33. The approach that the LA can never exercise its powers of parental responsibility under s.33(3)(b) to grant valid consent for a deprivation of liberty rests on the proposition that a deprivation of liberty is necessarily a decision of such magnitude as to require the role of the court. Although logically that conclusion might flow from what Lady Hale said in Cheshire West and Re D, neither of those decisions concerned the scope of parental responsibility in respect of children under the age of 16, let alone the scope of s.33(3)(b) in decisions concerning children of that age and deprivation of liberty.
34. Further, if one applies the test to the facts of J’s case, it is in my view clear that the decision to deprive him of his liberty is an inevitable one, which no reasonable court or parent would depart from. One way of testing this proposition is to consider what would happen if the LA, or those authorised to look after J i.e. the Children’s Home, did not put in place the restrictions sought. They would very obviously be in breach of their duty of care to J, given his known vulnerabilities and the manifest risks to his safety if he was allowed to leave the home unsupervised. In reality it is the obligation of any responsible carer of J to place restrictions upon him in order to keep him safe. Therefore, far from the restrictions amounting to a serious infringement of his rights that no LA could lawfully consent to, they are restrictions essential to ensuring his best interests, and indeed required by the State’s positive obligations under Article 2 ECHR to protect his life. In those circumstances in my view they fall within the LA’s statutory powers in s.33 CA.
35. Therefore the decision to “deprive him of his liberty” is not in my view a decision of such magnitude as to fall outside the LA’s powers, but rather an exercise of their statutory duties to him. In my view the LA have the power to consent to the restrictions and therefore to the deprivation of his liberty, and no DoLs order is needed.
Comment
At the time of writing, it is not known whether there will be an appeal. As with Lieven J’s other recent case in this context, it would be very unfortunate if there were not, because it is difficult to square her decision with the approach taken by the appellate courts to deprivation of liberty. It also is at direct odds not just with the decision of Keehan J in Re D, but also the decision of Sir James Munby in Re A-F [2018] EWHC 138 (Fam), in which the then-President of the Family Division held:
12 (i) [w]here a child is subject to a care order (whether interim or final) neither the local authority nor a parent can exercise their parental responsibility in such a way as to provide a valid consent for the purposes of Storck component (b): see In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160 [i.e. the decision of Keehan J in Re D], paras 26-29, 36, considered in Re D (A Child) [2017] EWCA Civ 1695, paras 48, 109-112.
That decision, unfortunately, does not appear to have been cited to her by the parties.
Looked at on its own terms, there is, further, a somewhat troubling sense of ‘boot-strapping’ in the approach taken.
As the decision of the Supreme Court in Re D makes clear, the ability of ‘true’ parents to give consent to the confinement of their child (below the age of 16) arises in consequence of the interaction between Article 5 and Article 8 ECHR in circumstances where “the responsibility of parents to bring up their children as they see fit, within limits, is an essential part of respect for family life in a western democracy” (see Re D at paragraph 3). It is difficult to say that a local authority, as corporate parent – and as an agent of the state – could itself enjoy Article 8 rights, or require respect to be owed to it as regards how it chose to bring up ‘its’ children. Indeed, it is precisely because the child’s ‘true’ parents are either unable or unwilling to look after their child that the law empowers the state to intervene in the child’s life by way of a care order.
It is therefore unsurprising that Lieven J in her judgment does not rely upon Article 8 ECHR as part of her argument.
However, if Article 8 falls away, so does any argument for relaxing the strict requirements of Article 5 ECHR.
On what basis, therefore, can a local authority be said to be acting within its powers to consent to the confinement of a child under 16 so as to take their circumstances out of the scope of Article 5 ECHR? That basis, Lieven J explains, is because it has the statutory power to do so. But, with respect, that argument is circular, because it would mean that the state had at the same time empowered itself to confine a child and to consent on behalf of that child to that confinement so as to take its circumstances outside the scope of Article 5 ECHR. The entire point of Article 5 is that it is supposed to constrain the exercise of state power to prevent it being deployed in an arbitrary fashion even if the person wielding it considers that they are doing so in a beneficent fashion. As the Strasbourg court noted in HL v United Kingdom:
121. […] While the Court does not question the good faith of those professionals or that they acted in what they considered to be the applicant’s best interests, the very purpose of procedural safeguards is to protect individuals against any “misjudgments and professional lapses” (Lord Steyn, paragraph 49 above)
On the logic adopted by Lieven J, further, the Court of Protection could empower a deputy to consent to confinement on behalf of an adult lacking capacity, and, by enabling the deputy to give that consent, remove the person’s circumstances from the scope of Article 5 ECHR. That logic has clearly not won favour with the European Court of Human Rights. As Lady Hale noted in Re D:
42. [… ] But, as also pointed out in Cheshire West, it is striking that the European Court of Human Rights has consistently held that limb (b) [i.e. that the confined person is not consenting] can be satisfied despite the consent of a person with the legal right to make decisions on behalf of the person concerned: see Stanev v Bulgaria 55 EHRR 22, DDv Lithuania [2012] MHLR 209, Kedzior v Poland [2013] MHLR 115, Mihailovs v Latvia, unreported, [2013] ECHR 65, and now Stankov v Bulgaria [2015] 42 ECtHR 276. In Stanev, the court did observe, in passing, that “there are situations where the wishes of a person with impaired mental facilities may be validly replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned” (para 130). However, as Keehan J observed in the Court of Protection (para 118) that is very far from adopting a general principle of substituted consent. The consent of a legal guardian may have been sufficient to make the confinement lawful in the domestic law of the country concerned, but that did not prevent its being a deprivation of liberty, or guarantee that it fulfilled the Convention requirement of legality. In the cases where limb (b) has been held to be satisfied, it is because the evidence showed that the person concerned was willing to stay where he or she was and was capable of expressing that view. Parental consent, therefore, cannot substitute for the subjective element in limb (b) of Storck.
Re D, as Lieven J pointed out, concerned a child over 16. But the logic of the passage immediately above (and the cases from Strasbourg referred to) is not age dependent. Rather, they might be thought fatally to undercut the basic premise on which Lieven J’s argument in J’s case is based.
The logic of Lieven J’s decision also leads to a result which might be thought to be odd, even for those who might be attracted to it. Care orders do not stop at age 16 (even if restrictions start to bite about applying for them as the child moves towards 18). Even if Lieven J could distinguish Re D as it applied to J when he was under 16, her approach logically suggests that the local authority’s consent must be able to continue throughout the life of the care order. When he turns 16, the local authority would then be armed with greater powers to exercise parental responsibility than his true parents would have been, given Re D is binding authority for inability of parents to consent to confinement of those over 16. It is worth repeating that this restriction on parents exists even with Article 8 in the parental corner, a right that the local authority cannot itself pray in aid. No explanation for this anomaly is given in the judgment, nor, in truth, is it apparent as to what explanation could be given. In this regard, it is noteworthy that in the course of examining the concept of deprivation of liberty carefully and confirming that a local authority could as corporate parent control the mobile phone use of a 16 year old subject to a care order, it did not appear to have crossed the mind of MacDonald J that the local authority could also consent to the confinement of the child in Manchester City Council v P (Refusal of Restrictions on Mobile Phone) [2023] EWHC 133 (Fam).
The logic of the paragraph above further raises the somewhat disturbing prospect of a local authority caring for an older teenager, highly resistant to the restrictions on them, opting them out of the protections of Article 5, on the basis that the local authority considers (with no external scrutiny) that it is acting in the child’s interests.
The problems with the approach in this case can be tested another way. Article 5 ECHR requires that deprivation of liberty can only take place under a procedure prescribed by law. It also provides that there is a limited and exhaustive set of circumstances under which someone can be deprived of their liberty. It might – just – be said that a local authority could consent to the confinement of a child subject to a care order if in so doing it is following a procedure prescribed by law.[1] However, there is no suggestion that the local authority in J’s case was in giving consent to confinement in purported exercise of powers under s.33 Children Act 1989 doing so by reference to the criteria under either Article 5(1)(d) (detention for the purpose of the educational supervision of a child) or Article 5(1)(e) (detention on the basis of ‘unsound mind’). So it would be difficult to argue – and in fairness, Lieven J does not seek to suggest – that the local authority in exercising its apparent ‘consent’ power was directing itself in such a way as to comply with Article 5 ECHR. Rather, and to reiterate, Lieven J concluded that it was acting in such a way as to take itself outside the scope of Article 5 altogether. Which many people might find challenging as a conclusion.
Finally, and as Cheshire West and Re D make clear, the fact that a local authority may be directly or indirectly confining the child in furtherance of positive duties towards the child (for instance to save their life) goes to the question of whether the deprivation of liberty is justified, rather than to whether there is a deprivation of liberty in the first place.
Taken together, therefore, I would suggest that this case needs to be read with a very large health warning – but, again, that the situation of children under 16 needs to be examined urgently by the appellate courts so as to resolve the increasingly complicated position that is unfolding.
Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.
[1] Albeit it would be better, perhaps, to describe it as authorising the confinement, rather than consenting to it.
