Lancashire County Council v PX (a child by his children’s guardian, Kirsty Smith) & Ors.

A child may remain accommodated under Children Act 1989, section 20, for a prolonged period where the statutory conditions are satisfied; there is no general time limit requiring care proceedings. Where parents recognise that disability-related needs exceed their capacity and ask the local authority to provide care, the threshold for a care order based on being beyond parental control is not established on those facts. A care order is also inappropriate where the parents support a child-focused section 20 care plan and no order serves the child’s welfare.

For a child under 16, parents may consent to objectively restrictive care arrangements amounting to a deprivation of liberty, unless a dispute requires the court to determine the child’s best interests. The court should not intervene merely as an independent human-rights guarantor where parents and public authorities agree.

The local authority accommodated PX, aged 15, under section 20 of the Children Act 1989. PX has significant disabilities, epilepsy and challenging behaviour. His parents agreed that specialist residential care was necessary and supported the care plan.

The local authority nevertheless issued care proceedings, raising the questions whether the section 31 threshold was met, whether a care order should be made, and whether the care plan’s restrictions required authorisation under article 5 of the European Convention on Human Rights. The care-order application was later withdrawn with permission. The remaining issue was whether parental consent was sufficient for the deprivation of liberty of a child under 16.

1. Section 20 accommodation and care order. PX was accommodated under section 20. The statutory threshold was not met. At the date of the agreement he had not suffered, and was not likely to suffer, significant harm attributable to being beyond parental control. His parents had exercised parental responsibility by arranging appropriate professional care. The court also held that the local authority had no proper basis for commencing care proceedings merely because it believed long-term section 20 accommodation might be unlawful. There is no time limit on the use of section 20: Williams v Hackney LBC confirms that care proceedings were unnecessary in these circumstances.
2. The court followed the statutory language and the High Court decisions in Re K and Re T in holding that section 31(2)(b)(ii) does not require parental fault. Being beyond parental control may be attributable to disability or illness. However, on the facts, the parents’ responsible decision to obtain local-authority care meant that the necessary causal connection was absent. Leicester City Council v AB supported the conclusion that a parent who arranges appropriate local-authority care has done what a reasonable parent would do.
3. Even if the threshold had been met, no care order would have been made. Where parents agree to a child-focused section 20 care plan and work constructively with the local authority, an order is not required and is contrary to the child’s welfare.
4. Deprivation of liberty. The restrictions satisfied the objective Cheshire West acid test: PX was under continuous supervision and control and was not free to leave. For children, the comparator is an average child of the same age without mental-health difficulties or challenging behaviour, not a child with PX’s characteristics. The restrictions were therefore objectively a deprivation of liberty.
5. Following Lincolnshire County Council v TGA, parents of a child under 16 may consent to an objective deprivation of liberty. Court involvement is required only if the parents and a public authority, or the parents themselves, dispute what is in the child’s best interests. The inherent-jurisdiction application was dismissed. Had authorisation been required, the restrictions would have been approved as necessary, proportionate and in PX’s best interests. On his sixteenth birthday, future authorisation must pass to the Court of Protection.

First-instance decision. The local authority was granted permission to withdraw its care-order application. The application under the inherent jurisdiction to authorise the deprivation of liberty was dismissed.