C (A Child), Re

A child may be deprived of liberty where he is confined, continuously supervised and controlled, and not free to leave, applying the Storck and Cheshire West criteria. A Gillick-competent child may give legally valid consent to confinement that would otherwise constitute a deprivation of liberty. Consent must be genuine and informed, but occasional breaches of restrictions or expressions of dissatisfaction do not necessarily invalidate it. A possible future withdrawal of consent does not negate consent that is validly given at the time. On the facts, the child validly consented, so court authorisation was unnecessary.

The local authority applied under section 100 of the Children Act 1989 for permission to invoke the High Court’s inherent jurisdiction to authorise the deprivation of liberty of C, a 15-year-old child subject to a care order. C lived in a specialist residential unit under constant supervision, with restrictions on movement, communication, internet access and leaving the unit. The parties agreed that the arrangements were in C’s best interests and proportionate, but disputed whether they amounted to a deprivation of liberty and whether C could and did consent to them.

The central issues were whether limb one of Storck v Germany was established, whether C was Gillick competent to consent, and whether his consent was genuine despite occasional breaches and the possibility of future withdrawal.

1. Deprivation of liberty. The restrictions placed C under continuous supervision and control. He had no unobserved free time, could not leave the unit without permission and supervision, and was subject to additional restrictions not imposed on the other residents. Limb one of Storck was therefore established: C was confined to a restricted place for a not negligible length of time. The relevant features were consistent with the twin elements identified in Cheshire West, namely continuous supervision and control and lack of freedom to leave.
2. Capacity to consent. A Gillick-competent child can, as a matter of law, consent to confinement which would otherwise amount to a deprivation of liberty. Competence depends on sufficient understanding and intelligence, not chronological age. Applying the principles in Gillick v West Norfolk and Wisbech Area Health Authority and Mabon v Mabon, C understood the nature of the arrangements, the restrictions and their purpose. He was therefore Gillick competent and capable in law of consenting.
3. Genuine factual consent. C’s complaints about restrictions, occasional breaches of house rules and occasional unauthorised departures did not establish lack of consent. He had always returned voluntarily, had not been returned by police or coercion, and had not absconded for a lengthy period. Consent to the overall degree of confinement was sufficient; consent to every individual restriction was unnecessary.
4. A real possibility that C might later withdraw his consent did not invalidate consent that was genuine when given. Cogent evidence that he regularly changed his mind or intended to withdraw consent immediately after judgment might have led to a different conclusion, but there was no such evidence.
5. The application of the inherent jurisdiction to authorise a deprivation of liberty was not necessary because C consented. The wider question of Article 5 compliance was therefore academic. The judge nevertheless agreed that the procedural safeguards described in X (A Child) and Y (A Child) were sufficient to make use of the inherent jurisdiction compliant with Article 5.
6. The issue of authorisation consequently did not arise.