Application by local authority for authorisation of deprivation of liberty for 15-year-old was not necessary, judge finds

Ms Justice Henke concluded that the teenage girl was not being deprived of her liberty, and the authorisations sought by the local authority were “not necessary”.

O is profoundly disabled with significant care needs.

The judge noted: “She lacks capacity to consent to her own care package but is described in the papers before me as knowing what she likes and what she does not like. O does not have the capacity to consent to her own deprivation of liberty.”

O's father provides day-to-day care for his daughter. In addition, O has a package of care provided under an ECHP and a Child in Need welfare plan. As such, O is provided with services and support by the local authority.

O attends a special needs school. School staff support O with her personal care as required.

In addition, O is provided with two nights per month respite care at a short breaks home run by the local authority. There, O receives 1:1 supervision and is not permitted to move freely about the facility or when out in the community for her own safety.

In September 2025, the local authority issued an application for an order under the inherent jurisdiction in relation to O.

The judge said: “If permitted to exercise the inherent jurisdiction, they seek an order to deprive O of their liberty for a period of 12 months. The application before the court is for the court to authorise the Local Authority to deprive O of her liberty while providing services to O and in particular:

Support with personal care at home, at school and at the residential home;
Being under constant supervision at home, at school and at the residential home;
The use of locks on doors to keep O from leaving;
The use of a 3-point harness to restrain her when being transported on the school bus.”

On behalf of O, the Children's Guardian noted that O is not subject to any public law order nor is she accommodated by the local authority. All services are provided to O under s.17 CA 1989 and her ECHP.

The judge said: “It is argued that the court may well take the view that several aspects of the restrictions are part of O's care provisions and do not amount to a confinement within the meaning of Storck limb (a) - Peterborough CC V Mother & Others [2024] EWHC 493 (Fam). It is accepted on behalf of O that Mr Justice MacDonald provides a helpful summary of the salient points for consideration when deciding whether a living situation amounts to a deprivation of liberty.”

It was agreed by the Guardian on behalf of O that there are aspects of her care where there is an “objective element of confinement to a certain place for a not negligible period of time” and that Storck limb (a) is met.

The judge said: “However, there are two aspects of the local authority's application which cause O's Guardian particular concern. They are:

i. Given that O is not a Looked After Child but is receiving assistance pursuant to s.17 CA 1989, the rhetorical question is posed - are other children with special needs, cared for in the main by a parent and in a similar circumstance, going to be required to have a DoLs order application made where there is similar assistance from the local authority? O's circumstances are not so different from the circumstances of other children who, like O, are known to the local authority but who are not in the care of the local authority or accommodated by them.

ii. Given that the father alone has parental responsibility, can he consent to any measures that could be seen as depriving her of her liberty?”

The Guardian was also concerned whether the actions of depriving O of her liberty were imputable to the State or whether they were being taken by her father exercising his parental responsibility either directly or through agents acting on his behalf. It was submitted that O's father was simply putting into place proper measures that met O's unique and additional needs.

That linked to the argument on behalf of O that O's father can consent to her deprivation of liberty - Storck limb (b).

O's father supported the argument on behalf of O's Guardian. "Putting it simply, he felt that there was no need for a court order authorising deprivation of O's liberty. He considered that the proceedings and the need for a court order undermined his parental responsibility which all agree he has exercised in O's best interests."

The judge noted that the key issue in the case was whether the consents O's father had given to O being deprived of her liberty, fell within the zone of his parental responsibility for her.

She added that this is ultimately “fact-specific”.

Discussing the case, Ms Justice Henke said: “Given O's level of maturity and understanding, in my judgment most parents would expect to continue to make decisions for her despite her age. In making decisions for O, they would consider her unique presentation and her individual needs. They would want to factor in the risks she poses to herself and others when taking steps to ensure her safety when she is not in parental care. That is what O's father has done in her case. He has consented to a package of care to meet her needs and to such confinement as is necessary to ensure she is safe when receiving that package outside his care. That is, in my judgment, an appropriate and responsible exercise of parental responsibility.”

The judge noted that when O is at home with her father, he locks the doors and ensures the home is secure.

She continued: “Whilst it is her father who is locking doors and placing her under constant supervision and control, her confinement is not attributable to the State, and Storck limb (c) is not met.

“[…] However, agency staff also support O to access the community at weekends and provide supervision in the home when her father is not available. When O's father is not available in the home or when staff take her into the community, the supervision they provide is 1:1 and constant. It amounts, in my judgment, to a confinement within limb (a) of Storck and, in so far as it is provided by agency staff is imputable to the State - limb (c) of Storck.

“However, it is, in my judgment, an appropriate exercise of parental responsibility by O's father to consent to those steps to keep her safe when he is not available to supervise her himself. If O's father were to leave O without such provisions being put in place, he would be neglectful of her welfare interests. The decisions he has taken have been to ensure O's safety. They are decisions which falls clearly within the zone of parental responsibility, and consequently O is not deprived of her liberty.”

Turning to consider the care O receives at her specialist school, the judge similarly found that the safeguards in place in the school setting “objectively do amount to a confinement within the meaning of Storck limb (a) and they are imputable to the State”, however, they do not amount to a deprivation of liberty because O's father's consent to that confinement is “within the zone of his parental responsibility” for her.

The same conclusion was made in relation to the care that O receives when she stays at the short stay home – where she is under constant 1:1 supervision, and there is a lock preventing her leaving the premises - and when O is transported by the short stay home.

Concluding the case, Ms Justice Henke said: “The consents that O's father has provided in this case to the deprivation of her liberty are all considered to be in her best interests. Each falls within the zone of his parental responsibility. O is not being deprived of her liberty and the authorisations the local authority seeks are not necessary.

“Accordingly, the application by the local authority is dismissed.”

Lottie Winson