Court of Appeal to hear case next week on ability of local authority to consent to deprivation of liberty of child subject to care order

The Court of Appeal will next week hear an appeal over a High Court ruling that a local authority, which holds ‘corporate’ parental responsibility for a child under the age of 16, has the power to consent to a deprivation of his liberty.

In J: Local Authority consent to Deprivation of Liberty, Re [2024] EWHC 1690 (Fam) Mrs Justice Lieven concluded that there was such a power and no deprivation of liberty order was needed.

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, including “what might be described as restrictions”, according to Lieven J.

"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," she said.

The local authority applied for a care order, which the judge had no hesitation in making, and a deprivation of liberty order, which she declined to make.

In her ruling, Mrs Justice Lieven said the core test was whether the decision that the local authority is being asked to make under s.33(3)(b) CA “of such magnitude” that it cannot be made by the local authority, but rather must be made by the Court.

The High Court judge continued:

32. There is no doubt, as Lady Hale said [in the Cheshire West Supreme Court ruling], 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.

The appeal is expected to be heard in one day on either 5 or 6 February.

According to law firm Leigh Day, which is acting for the Children’s Commissioner for England who is intervening in the appeal, all the parties in the case – the Children’s Guardian, Bath and North East Somerset Council and J’s parents – are of the view that “although the care arrangements approved for the child at the centre of the case are in his best interests, it is still wrong that the council could impose arrangements which deprive a child of their liberty without the court’s approval”.

Speaking ahead of the appeal, the Children’s Commissioner, Dame Rachel de Souza, said: “Restricting a child’s liberty is one of the most significant interventions the state can make.

“Too often these decisions are dictated by local resource or capacity, rather than by the individual needs of the children who are some of the most vulnerable in our country."

She added: “At the heart of this case is a child who deserves a voice in the decisions being made about his life - like so many other children who have told me they want the chance to be truly heard by the adults in their life.

“Where depriving them of their liberty is necessary to keep that child safe, it must have the independent oversight of a judge so that there is accountability in the quality of the care they receive.

“The judgment in this case risks removing this important scrutiny in children’s lives and worsening the deeply concerning conditions far too many children are enduring.”

Leigh Day said Dame Rachel would share with the court first-hand reports from children in care who are subject to deprivation of liberty orders.

“These illustrate the importance of the court having oversight of care arrangements which deprive children of their liberty, even where there is no dispute about the need for the child to be confined,” it added.

The Children’s Commissioner will also give examples of children for whom court-authorised deprivation of liberty orders have led to them being moved to accommodation much better suited to their needs and well-being.

See also:

Local authorities, care orders and consent to confinement - Alex Ruck Keene KC (Hon) analyses Lieven J’s decision.

Can a local authority consent to the deprivation of a child’s liberty? By Sophie Webb, an Associate at law firm RWK Goodman who is representing the mother.