Tag Archives: depriving a child of liberty

We’ve been waiting for this judgment for a while – we knew the decision, but I’ve already seen a reported decision that stuck with the Lieven J line because this judgment wasn’t available, so it is very welcome.

J v Bath and North East Somerset Council & Ors [2025] EWCA Civ 478 (29 April 2025)
https://www.bailii.org/ew/cases/EWCA/Civ/2025/478.html

Basically, as people may know, the High Court was having a debate for ages and ages as to whether in a case where a child was subject to a Care Order or Interim Care Order the LA needed to apply to Court for the Court to authorise vaccinations if the parent objected, or whether they should just their powers under s33 of the Children Act to announce that they would go ahead with the vaccinations and it would be for the parents to apply to Court to prevent it. That finally got settled as being the latter course.

I was a little surprised to see the High Court deciding that the issue of depriving a child in care of their liberty should be considered analogous to vaccinations and that the LA should not trouble the Court with them in the most obvious cases (in essence, if it is apparent that the child’s safety and needs requires the deprivation then the LA should just authorise it themselves and only come to Court for the finely balanced ones. Cough cough Cheshire West says hello cough cough)

The Court of Appeal say here that the answer to the question, can the LA provide their own consent to depriving a child of liberty (i.e marking their own homework) is an emphatic no.

1. Before turning to the substance of the appeal, it is helpful to be clear as to the language that applies to cases such as the present. The conventional word used to describe the circumstances in limb (i) of Storck is ‘confinement’, whereas ‘deprivation of liberty’ is the term used to describe a situation in which all three limbs are met and Art 5 is engaged [see Sir James Munby in Re A [2018] at paragraph 9]. It follows (as Ms Roper helpfully submitted) that what is being consented to in limb (ii) is confinement under limb (i) and not the overall deprivation of liberty. At a number of points in her judgment, the judge described the situation where limbs (i) and (iii) of Storck were satisfied as establishing that there is a deprivation of liberty [paragraphs 12, 15, 17, 26 and 33] and that the question is whether there is valid consent to that deprivation of liberty. In doing so the judge seems to have approached the question of consent under limb (ii) as a separate, and subsequent, step rather than as part of the overall, three-limb, evaluation, before which it can be said that there is an Art 5 deprivation of liberty, as required by Storck.
2. Taking that point to the next stage, the exercise for the court in a DOLs application is to determine, if the circumstances do establish that there has been (or is to be) a deprivation of liberty that engages Art 5, whether the court should authorise it ‘in accordance with a procedure prescribed by law’ [Art 5(1)] and where the subject individual has been ‘entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court’ [Art 5(4)].
3. Turning to the substance of the appeal itself, I am clear that the question of whether it is necessary for the court to authorise the deprivation of liberty of a child who is the subject of a care order, where the local authority consents to the child’s confinement, must be determined in accordance with the Human Rights Act 1998 in a manner that is compatible with the ECHR. Rather than analysing matters through the lens of the domestic law relating to the exercise of parental responsibility, or possible defences to potential civil litigation, it is the structure imposed by ECHR, Art 5 that must be applied. In this regard, the lodestar is the decision in 2004 of the ECtHR in HL v United Kingdom (Application: 45508/99) 40 EHRR 761.
4. HL v UK concerned an adult who had, for many years, been resident at Bournewood Hospital as a consequence of autism and profound mental handicap. Following a deterioration in his behaviour during a period of home leave, he was admitted to hospital informally and, because of his apparent compliance, no proceedings were taken to detain him under the Mental Health Act 1983. Despite the benevolent motive underlying the care of the hospital, and the clear need for him to be cared for in a restricted regime, the ECtHR held that the circumstances amounted to a breach of Art 5 and that there had been a denial of access to any formal procedure for review or challenge of the care regime on his behalf. Having noted the striking lack of any procedures for his admission and continued retention in the hospital [paragraph 120], the court observed:
5. Although HL v UK relates to an adult, the underlying emphasis on the ‘essential purpose’ of Art 5 and the importance of the ‘distinctive and cumulative protections’ offered by Art 5(1)+(4), must apply in equal measure to a child. The importance of HL v UK, and the court’s finding against the UK, is that it was following that decision that the DOLs provisions within the Mental Capacity Act 2005 were enacted in order to fill the lacunae (‘the Bournewood Gap’) in domestic law that had been identified by the court in Strasbourg. Baroness Hale described the position at paragraph 19 of Cheshire West:
6. I have already set out Lady Hale’s conclusion at paragraph 56 of Cheshire West [paragraph 40 above], holding that, no matter how benign the intentions of the care-providing local authority may be, ‘the purpose of Art 5 is to ensure that people are not deprived of their liberty without proper safeguards, safeguards that will secure that the legal justifications for the constraints which they are under are made out’. The decision in Cheshire West is binding on this court, as it was on the learned judge. It is a decision that naturally flows from the ECtHR’s judgment in HL v UK, and it is determinative of the issue in this appeal. A child in the position of J in the present case, must be afforded the benefit of the checks and safeguards under Art 5(1), or separately (as HL v UK from paragraph 125 onwards makes plain) of access to a process in court under Art 5(4).
7. The effect of the judge’s decision, where a local authority consents to the confinement by the State of a child in their care, would be to remove the case from Art 5, thereby avoiding the important protection, safeguards and independent authorisation by a court that would otherwise be required. Irrespective of whether it may be said that, as a matter of domestic law, a local authority may give valid consent if they hold parental responsibility under a care order, HL v UK and Cheshire West make it plain that it is simply not open to the State, through the local authority, to avoid the constraints of Art 5. As Lady Hale stated: ‘In the end, it is the constraints that matter’.
8. The judgment below does not refer to HL v UK or to the relevant passages in this context in Lady Hale’s judgment in Cheshire West. The absence of connection with those core sources of authority may explain the judge’s difficulty in seeing ‘what the point of a DOLs order is on the facts of a case like J’s’.
9. It follows that Keehan J was entirely correct to hold, as he did, in Re D (No 2) that the answer to this central question is ‘an emphatic “no”‘, and that Lieven J’s analysis in the present case, was in error. That error, in short, was to focus on whether, as a matter of domestic law, a local authority may provide ‘valid consent’ in order to avoid engaging limb (ii) of Storck. If, instead, the focus had been, as it should have been, upon the overarching purpose of Art 5, as determined by HL v UK and Cheshire West, the inevitable conclusion would have been that, irrespective of the domestic law relating to parental responsibility, the State can never give valid consent in these circumstances.

A really helpful reset, much welcomed by many of us in the legal community.