Children under 16 and deprivation of liberty

The two cases are East Riding of Yorkshire Council v The Mother, The Father and L [2026] EWHC 181 (Fam) (referred to below as Re L) and Medway Council v The Father and O [2026] EWHC 236 (Fam) (referred to below as Re O)

Re L

In Re L, the Local Authority sought a declaration that a regime of constant supervision, control, and restraint in respect of a 12 year old girl with autism and significant sensory processing needs being  provided under a s20 agreement was not a deprivation of liberty falling within the ambit of Article 5 European Convention on Human Rights because she lacked capacity (not being Gillick competent to make such a decision) and her parents consented. The Guardian opposed this application on the basis that some of the measures contemplated (in particular the use of physical restraint and advance consent to the forced administration of anti-psychotic medication) were beyond the limits of what a parent could authorise within the ambit of their parental responsibility.

The Court found as follows:

1. L is confined within a registered Children’s Home subject to the Care Standards Act 2000 and the Children’s Home (England) Regulations 2015 and associated National Minimum Standards ([54]).
2. L’s parents can consent to a deprivation of liberty on her behalf, but the limits of such consent are to be ascertained by general community standards in Great Britain on the facts of the case (applying Re D [2017] EWCA Civ 1695) ([55])
3. The decisions in respect of the regime of confinement have been made by L’s parents in her best interests because she does not have the capacity to make them herself. Any parent taking such decisions would regard them as coming within the zone of parental responsibility in order to ensure her safety, protect her and make sure her care needs are met. ([57])
4. The use of physical restraint, while partly used for the purpose of L’s care and treatment (for example in order to unstick her when she is unable to move due to becoming psychologically overwhelmed) is also used to restrain her and prevent her leaving which goes beyond the permitted ambit of the Care Home Regulations, and for transport and is therefore objectively a component of her deprivation of liberty ([58-59])
5. Advance consent to medical treatment for a non-Gillick competent child is within the zone of parental consent to medical treatment ([61])
6. Together the statutory scheme of regulation for children’s homes and the consent of the parents, who are best placed to judge the proportionality of such measures, provide effective safeguards for L ([63-65])

Re O

In Re O, the Local Authority applied for a declaration that a package of support measures provided under s17 Children Act 1989 for a profoundly disabled 15 year old girl with global developmental delay and a number of physical limitations which  included in-home care provided by agency carers, respite care, specialist schooling and transport to and from the home was lawful.  The package included continuous supervision and care, restraint during travel, and confinement in locked premises.  The Father and the Guardian argued that authorisation was unnecessary as O was not Gillick competent, and that the Father’s consent was valid consent for the purposes of Article 5 European Convention on Human Rights

The decision in Re O was that

1. While the age of the child is relevant in considering whether a confinement constitutes a deprivation of liberty (per Re D [2015] EWHC 922 (Fam), the unique characteristics of the child are key to determining whether or not the zone of parental responsibility has contracted to the point a child is capable of making decisions for themselves.  Where a child under 16 lacks Gillick competence, the zone of parental responsibility remains wide ([26]).
2. While O is physically able to exercise her right to liberty, she lacks Gillick competence to make decisions in relation to it and the decisions as to how her package of care is provided are being managed by her Father in her best welfare interests to ensure her safety ([29-31]).
3. Where the focus of care staff is on O’s personal care in the family home, such care and treatment does not amount to a confinement within the meaning of Article 5 ECHR.  However, when O’s Father is not available in the home, or the staff take her into the community they are providing constant 1:1 supervision which is capable of being such a confinement.  ([32])
4. Authorising such an arrangement or similar arrangements at school or in respect care is however, an appropriate exercise of parental responsibly by the Father in order to protect her welfare and keep her safe, which falls within the zone of parental responsibility ([32-36])

Discussion

These decisions together clarify points that have been causing some uncertainty as to the circumstances in which the authorisation by a court of a deprivation of liberty for a child under 16 is necessary, but this is a complex area of law, and every new decision brings further difficulties with the current legal framework and the complexity of the underlying ECHR and domestic case law to light.

Background

The legal test for whether a person is deprived of their liberty within the meaning of Article 5 ECHR, the Storck test, as summarised by MacDonald J in Wigan MBC v W and Ors [2021] EWHC 1982 (Fam), requires

1. an objective element of confinement to a certain limited place for a not negligible period of time
2. a subjective element of absence of consent to that confinement and
3. the confinement imputable to the State

Re D (A Child) [2019] UKSC 42 establishes that while ECHR case law includes a principle of substituted consent which satisfies limb (b) of the Storck test, this doctrine cannot apply in respect of children who have reached the age of 16, because parental responsibility does not extend to authorising such a deprivation. Children with disabilities should be compared with those of children of the same age and background who do not have disabilities, and the standard for what would amount to a deprivation of liberty is the same. The age of sixteen is significant in UK law on the basis of the Mental Capacity Act 2005 applying at this date and the provision in the Family Law Reform Act 1969 that a child of 16 or over can consent to medical treatment on their own behalf without parental involvement, and consent to a deprivation of liberty is therefore outside of the zone of parental responsibly for a child who has reached the age of 16.  Although Lady Hale goes on to speculate that the same reasoning would apply to children under the age of 16, the Supreme Court is careful not to make any decision in respect of children under 16.

Services provided by the state on behalf of the parents can amount to a confinement within Article 5 ECHR if they involve a regime of continuous supervision and/or restraint

It was argued by the Guardian in Re O that the care package being applied did not satisfy limb (c) of the Storck test in that it was being provided by the State at the father’s request ([15])). Henke J does not specifically spell out why she rejects this approach in her judgment, but the answer would appear to lie in the positive obligations imposed on the state to take measures to ensure that convention rights are not breached ([25] albeit mentioned in a different context), which is in line with Lady Hale’s comments in Re D at [48] that the state cannot do what it is under an obligation to prevent others from doing.

MacDonald J in Manchester City Council v CP & Ors [2022] EWHC 133 Fam) gave some clarity as to the scope of what restrictions fell within the context of Article 5 indicating that any restrictions must be a restriction on the person’s freedom of movement rather than a broader restriction such as telephone or internet use. Re L and Re O provide further helpful clarification on where the limits of measures restricting the liberty of children lie as follows:

1. From Re L it can be inferred that it is not relevant that the measure serves a dual purpose such as therapeutic regulation, if restraint has the effect of limiting freedom of movement, it is capable of forming part of a regime of continuous supervision and control
2. Re O suggests that continuous personal care will not in and of itself amount to part of a regime of continuous supervision and control, but constant 1:1 supervision provided by a carer to prevent wandering is likely to do so.

Such decisions are usually highly dependent on the specific circumstances of the child and there will continue to be difficult edge cases, such as where a child’s access to communication technology is restricted in order to prevent them seeking help from third parties to abscond.  On the whole these decisions represent a helpful steer that in seeking restrictions the focus should always be on physical freedom of movement and continuous supervision and control in relation to this.

Parents can validly consent to a deprivation of liberty for children under 16 who lack capacity

This question has been the cause of some confusion since the decision by the Supreme Court in Re D [2019] UKSC 42, which came to the opposite conclusion in respect of children over the age of 16.  

Re L and Re O follow other recent High Court decisions such as Peterborough City Council v SM [2024] EWHC 493 (Fam) in deciding that where a child under 16 lacks capacity to make decisions about their own deprivation of liberty, the decision falls within the zone of parental responsibility and parental consent is sufficient to constitute substituted consent within limb (b) of the Storck test.  Where there is parental consent for an incapacitous child under the age of 16, there is no requirement for the court to authorise deprivation of liberty.

The difficulty with this approach is that while it acknowledges that Lady Hale’s comments were non-binding, it to some extent fails to grapple with the non-binding points of her judgment in Re D. If the standard to be applied is that of a child of the same age and background, then the test as to whether deprivation of liberty falls within the zone of parental responsibility is not easily answered without considering a child’s particular circumstances and background. The scope of the decision in Cheshire West and Re D are it seems being rolled back to provide a more legally certain and pragmatic regime.

This may be being driven by understandable and reasonable pragmatism. It is a concern that substantial court time may be occupied by cases where all parties agree as to the appropriate welfare outcome. The Court of Protection has, however, already successfully grappled with similar concerns in implementing the Re X procedure for authorising such deprivations outside of an institutional setting.

Firstly, this is at odds with the statutory regime in respect of secure accommodation under s25 Children Act 1989, to which a parent may not consent. It seems odd that there should be less protection for children whose liberty is restricted outside of the statutory and more tightly regulated secure accommodation scheme.

Furthermore the case law in respect of parental consent to confinement flows from the ECHR case of Neilsen v Demark (1988) 11 EHRR 175, a judgment that predates the Storck criteria, and does not therefore provide an analysis in those terms. Neilsen also considers the child’s age, and the fact that the restrictions imposed were not materially different from those imposed on any 12-year-old receiving treatment in hospital as relevant ([72]). Those circumstances are not analogous to these cases.

These decisions also sidestep some of the analysis in Cheshire West itself in respect of the applicability of Article 5, which is general, and not restricted to persons above the age of 16.  In particular it is stated that the purpose ([28]) and benevolence ([35]) of such restrictions are not relevant, what it means for a person to be deprived of liberty must be the same for a everyone, whether or not they have physical and mental disabilities ([46]) and the correct comparator is someone of the child’s age and station who is not limited ([77]).  

In particular it is unlikely that exercising complete control over the movements of a teenage child under 16 would be appropriate in ordinary circumstances, and if Cheshire West is correctly decided, this would mean that in many cases, parents cannot consent to many of the more restrictive elements of deprivation of liberty required to keep severely disabled children safe.  Further these two cases take the line that where parental consent is exercised in the child’s best interests, that is valid consent within limb (b) of Storck, and that cannot be reconciled with principle that the purpose or benevolence of such decisions is irrelevant.

These decisions reinforce a clear legal distinction between disabled children approaching the age of 16 who lack competence to make decisions about their own liberty and children of the same age with behavioural difficulties who are capable of making such decisions but are not doing so in their own best welfare interests.  The former group are arguably far more vulnerable, often being entirely unable of making their wishes and feelings known, and no court oversight appears to be necessary, even though it would be for the latter group.  

It is likely that everyone involved in making such decisions is acting in the child’s best interests.  But that is also true for care decisions being made on behalf of incapacitous persons over 16, which do require court authorisation.  The ECHR case law emphasises the universal nature of the right to freedom of movement, and Article 14 ECHR indicates that it applies equally to all regardless of disability, but these decisions appear to solidify a two-tier approach to their enforcement that is at odds with that universal nature.

Adequacy of safeguards for children under 16 deprived of their liberty with parental consent

It was argued in Re O that this position left vulnerable disabled children in a position where there was no oversight in respect of their confinement and less protection than a 16 year old whose liberty is restricted under the Mental Capacity Act. In both cases, Henke J comes to similar conclusions that the existing regulatory frameworks provide adequate safeguards. This is either through the statutory framework governing registered children’s homes (in Re L), or more generally through the child protection framework in the Children Act 1989 (in Re O) in the event that it is alleged a child is being deprived of their liberty against their best interests.  

While Re O therefore does provide an answer to the question as to how children placed in unregulated placements (which still remains frustratingly common) would be protected, it does rather beg the question as to who would be invoking such a protective measure if the Local Authority is providing the care package and the parent consents to it. Local Authorities are still being asked to mark their own homework when it comes to determining whether a deprivation of a vulnerable child’s liberty is in that child’s best interests, and that does not seem in line with the intention of the Article 5 of the ECHR that the state should not be depriving anyone of their liberty without that act being in accordance with a procedure prescribed by law and permitting them to take proceedings in which the lawfulness of their detention shall be decided by a court.

Christi Scarborough is a barrister at 42BR. She represented the Local Authority in Medway Council v The Father and O [2026] EWHC 236 (Fam)