Local authorities cannot authorise deprivations of liberty of children in care, Court of Appeal rules

The Court of Appeal has allowed an appeal over whether a local authority can authorise the deprivation of liberty of a 14-year-old boy in exercise of its parental responsibility under a care order.

In J: Local Authority consent to Deprivation of Liberty, Re [2024] EWHC 1690 (Fam) Mrs Justice Lieven had concluded in June last year that local authorities had the power to do so and no deprivation of liberty order was needed.

However, at the end of a hearing yesterday, the Court of Appeal – comprising the President of the Family Division, Sir Andrew McFarlane, Lady Justice and Lord Justice Singh – allowed an appeal and made a deprivation of liberty order.

The Court of Appeal will issue a written ruling in due course, but its decision yesterday means Lieven J’s ruling should not be followed.

The case concerns a 14-year-old boy (J), who 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.

His parents struggled to provide him with the care he requires, which led them to agree to s.20 Children Act 1989 accommodation in 2020.

J resides in a specialist children’s home, where he is subject to a high level of care and supervision.

In her ruling Lieven J had noted: “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.”

Mrs Justice Lieven concluded that the decision to "deprive him of his liberty" was not in her 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”.

However, all the parties in the case – the Children’s Guardian, Bath and North East Somerset Council and J’s parents – were of the view that although the care arrangements approved for the child at the centre of the case were in his best interests, it was still wrong that the council could impose arrangements which deprived a child of their liberty without the court’s approval.

The interveners – charities Article 39 and Mind, the Secretary of State for Education and the Children’s Commissioner – also backed the need for court oversight.

Sophie Webb, an Associate in the Care Team at law firm RWK Goodman, who represented the mother in this case, said: “This is an incredibly important case which highlights the complexity of the law in this area and the right under Article 5 of the Human Rights Act to liberty and security of person.

“From a parent’s perspective, whilst there may be agreement at a certain point in time as to the arrangements for a child’s care and any restrictions that would deprive that child from their liberty, that may not always be the case. A child’s needs are likely to evolve throughout their childhood and into adolescence, potentially requiring additional or more restrictive care arrangements.

“Without the oversight of the Court and thorough scrutiny of the arrangements in place for a child, there is a real risk that a child will be unlawfully deprived of their liberty.  Against a background of the issues we are seeing nationwide with the shortage of regulated placements for children, this could have a hugely detrimental impact on some of the most vulnerable children and young people in our society.”