Lincolnshire County Council v TGA & Ors.

For a child under 16 who lacks Gillick competence, a parent or person exercising parental responsibility may consent to a deprivation of liberty within the subjective limb of the Storck analysis, where the arrangement is in the child’s best interests. The assessment depends on the individual child’s maturity, intelligence and circumstances, rather than comparison with a hypothetical child of the same age. Parental powers remain welfare-limited: consent contrary to the child’s best interests falls outside the zone of parental responsibility. The Supreme Court’s conclusions concerning children aged 16 or 17, and its observations about younger children, did not preclude that approach.

K, aged 14, had epilepsy, autism, attention deficit disorder and global developmental delay. He was accommodated by the local authority under the Children Act 1989 and lived at a Children’s Centre under arrangements accepted as appropriate. His parents were deceased, and three testamentary guardians had an effective appointment.

The issue was whether the restrictions amounted to a deprivation of liberty under article 5 of the European Convention on Human Rights and whether the guardians could consent to them. The court considered the earlier decision in Trust A v X and A Local Authority, [2015] EWHC 922 (Fam), and the Supreme Court’s decision in Re D (A Child), [2019] UKSC 42. The central question was whether the position for children under 16 differed from that for children aged 16 or over.

Disposition. The court held that testamentary guardians could lawfully consent to K’s deprivation of liberty because he was under 16, lacked Gillick competence in relation to the decision, and there was no dispute that the arrangements were in his best interests.

1. Article 5 framework. The court applied the three components identified in Storck v Germany (2005) 43 EHRR 96: objective confinement, lack of valid consent, and attribution of responsibility to the state. For a child under 16 lacking Gillick competence, parental consent could answer the subjective consent issue. Separate analysis of parental authorisation of the state was unnecessary.
2. Common-law parental power. The power of parental custody, including physical control, had long been recognised in Hewer v Bryant [1970] 1 QB 357. That power had not been removed by statute for children under 16. The court treated Nielsen v Denmark [1988] 11 EHRR 175 as authority that hospitalisation of a young child could fall within parental responsibility even where the arrangements would otherwise constitute a deprivation of liberty.
3. Individualised competence. The court preferred the approach in Gillick v West Norfolk Health Authority [1986] AC 112. Maturity, intelligence and the circumstances of the particular child had to be assessed. The hypothetical same-age comparator used in Cheshire West and Chester Council v P [2014] AC 896 was not adopted for this issue.
4. Limits and age distinction. Parental responsibility existed only for the child’s benefit. A decision contrary to the child’s best interests would fall outside its scope. The Supreme Court’s decision in Re D (A Child) [2019] UKSC 42 concerned children aged 16 and 17; its comments about younger children were obiter and did not determine the under-16 position.