A Local Authority v SW & Ors

Where a child is objectively confined by the State and is not realistically free to leave, consent to the confinement must be both authentic and enduring. Apparent consent may be rejected where subsequent events demonstrate that it was not genuinely expressed or could not be sustained. A deprivation of liberty declaration may be necessary where, without it, the child would appear free to leave but could repeatedly be treated as missing and returned by the police, producing an outcome inconsistent with the purpose of the law.

The judgment followed an earlier decision concerning the detention of a child at a placement, reported at [2018] EWHC 576 (Fam). The court had held that the second component of the Storck test was satisfied because the child’s purported consent was neither authentic nor enduring. Permission to appeal had been granted, but the original placement subsequently broke down and the order authorising detention there was discharged.

The child was moved to a new placement in the Midlands. The first and third Storck components were agreed to be satisfied. The central issue was whether the child authentically consented to the new confinement.

1. The previous order was discharged because the placement to which it related had ended. The contemplated appeal against that order was therefore redundant.

2. The court adopted the same reasoning for the fresh placement. The first and third Storck components were engaged: the child was objectively confined, was not realistically free to leave, and the confinement was at the behest of the State.

3. The second component required consent to be both authentic and enduring. Although the child had previously expressed apparently authentic consent, subsequent conduct, including absconding, serious dysregulation, substance-related concerns, self-harm and reported sexual exploitation, demonstrated that the consent was not genuinely expressed or could not endure.

4. A deprivation of liberty declaration was therefore made in respect of the new placement, granting the Local Authority the associated powers and protections. Without the declaration, the child would appear free to leave, while the Local Authority could seek police assistance to return her as a missing person, with nothing preventing her immediate departure again. The court regarded that consequence as inconsistent with what the law intended.

5. Permission to appeal was refused. The judge considered that there was no realistic prospect of success and no compelling reason for an appeal to be heard.

The earlier order was the subject of permission to appeal granted by Peter Jackson LJ. Following the breakdown of the relevant placement, that order was discharged and the proposed appeal became redundant. A fresh order was made in this judgment, and permission to appeal against it was refused.