High Court finds LA can consent to deprivation of child’s liberty without DoLs order

The High Court has concluded that a Local Authority, which holds parental responsibility for a child under the age of 16, has the power to consent to the deprivation of his liberty.

In J: Local Authority consent to Deprivation of Liberty, Re [2024] EWHC 1690 (Fam), Mrs Justice Lieven concluded: “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.”

The case concerned J, a 14-year-old boy. J is a looked after child under s.20 Children Act 1989, with a complex set of diagnoses, including autism and ADHD.

J is also diagnosed with Pica - an eating condition by which the individual tries to swallow non-food items. “He can be impulsive about what he puts in his mouth, and has no recognition of the harm this could cause him. He has, for example, put magnets in his mouth”, said the judge.

J’s parents struggled to provide J with the care he requires, which led them to agree to s.20 CA accommodation on 1 April 2020.

Mrs Justice Lieven noted that J is subject to a high level of care and supervision at a specialist children’s home, “including what might be described as restrictions”.

She said: “The windows in his room have latches that can only be opened an inch; there is total supervision in the community; if J wants to go to the garden he takes his shoes to the door, the staff support him to go out fully supervised, or direct him to another activity. He is followed to the toilet, to offer support and to ensure he does not defecate on the floor. The property is Pica safe, with all small objects placed safely away from him. At night there are two waking staff to support J and the other two children in the property. He has to wear a harness in the car to prevent him getting into the footwell.”

The Local Authority sought a Care Order and a Deprivation of Liberty (DoLs) order.

The judge said: “The Care Order is not resisted by any party. The parents accept that they cannot care for J, and that a Care Order is appropriate given the level of his needs. […] The real issue in this case is whether it is necessary for the Court to make a Deprivation of Liberty Order.”

The judge noted that there are two issues about whether a DoLs order is required. She said: “The first is whether there is a deprivation of liberty within the meaning of Article 5 European Convention on Human Rights (“ECHR”), applying the first and third limbs of Storck v Germany [2006] 43 EHRR 6.

“The second is whether the parents and the LA can consent to the care that is being provided to J.”

On the first issue, she set out the principles that apply in Re SM (Deprivation of Liberty; Severely Disabled Child) [2024].

She said: “SM was both physically and mentally profoundly disabled and was totally unable to either physically leave or have any wish or intention to leave. I therefore found that it could not sensibly be said that she was deprived of her liberty by any action of the State. Her inability to leave the premises was entirely a function of her own situation.”

She added: “I accept that the position is less clear cut in respect of J. Although there is an argument, based on the analysis in Re SM, that he is not objectively confined by reason of the actions of the State, in the light of the caselaw, and in particular Cheshire West v P [2014] AC 896, I do not think it is open to a court of first instance to reach that conclusion. I therefore accept that the first and third Storck limbs are met.”

On the second issue, the judge said: “The issue in the present case is whether a LA, which holds parental responsibility for a child under the age of 16, under a Care Order, can consent to a deprivation of liberty of that child. In Re D (No 2) Keehan J held that it could not so consent.”

She added: “The central part of Keehan J’s reasoning appears to be in [29] and his concern that the local authority is an organ of the State, and thus the State is depriving the child of their liberty. There therefore has to be a procedure prescribed by law; proper safeguards and a periodic independent check on the terms of the deprivation.

“However, in my view that analysis 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.”

Mrs Justice Lieven observed that if there is valid consent, whether from an adult with capacity or the parent of a child within the zone of parental responsibility, then there is no deprivation of liberty within Article 5.
She said: “The need for a procedure prescribed by law, proper safeguards and periodic checks do not arise, because there is a valid lawful consent.”

Turning to the specific facts of J’s case, the judge said: “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.

She added: “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.”

She concluded: “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.”

Lottie Winson