XY Council v MN & Ors.

Parents may, in the proper exercise of parental responsibility, consent to care arrangements which would otherwise amount to a deprivation of liberty for a child under 16 who lacks Gillick competence. The consent is effective where the arrangements are genuinely directed to the child’s safety and welfare and are not contrary to the child’s best interests.

The question is fact-specific. High Court authorisation is not automatically required in every case involving a child under 16. Where restrictions arise from the child’s disability and necessary care needs, rather than abusive or unreasonable parenting, parental consent may mean that the subjective consent limb of the deprivation-of-liberty test is not satisfied.

The local authority applied under the inherent jurisdiction for declarations authorising restrictive care arrangements for RN, a 12-year-old child with significant learning disability, ADHD and complex care needs. The arrangements included locked external doors, constant supervision, escorted outings and restrictions on communication and activities.

The application followed care proceedings in which RN was to remain living with her father under a Child Arrangements Order and a 12-month Supervision Order. The central issue was whether the arrangements were lawful through parental consent, or whether they required authorisation under the High Court’s inherent jurisdiction.

1. Parental consent. The court held that the established authorities support the proposition that parents may consent to care arrangements amounting otherwise to a deprivation of liberty for a child under 16, provided the consent is a proper exercise of parental responsibility and is given in the child’s best interests.
2. Scope of Re D. The Supreme Court’s decision in Re D (A Child) was concerned with children aged 16 and 17. The observations concerning younger children were expressly qualified because that issue did not arise for decision. The reasoning of Keehan J in the earlier Re D decision concerning children under 16 remained applicable.
3. Fact-specific assessment. The court rejected the suggestion that every restrictive arrangement for a child under 16 requires High Court proceedings. The assessment must focus on the concrete circumstances, including the child’s age, disability, needs, vulnerability and the purpose and extent of the restrictions. A local authority concerned that parental care is causing, or is likely to cause, significant harm may issue care proceedings. If a care order is made, its powers under sections 33(3) and 33(4) of the Children Act 1989 may regulate the exercise of parental responsibility.
4. Application. RN’s restrictions were necessary because of her complex disabilities and vulnerability. They were supported by the local authority professionals and the Children’s Guardian, and no party suggested that her father was acting contrary to her welfare or professional advice. The arrangements were therefore a lawful exercise of parental responsibility. Parental consent meant that the second, subjective-consent limb of the three-stage deprivation-of-liberty test was not met.
5. The court accordingly made no declaration under the inherent jurisdiction. The arrangements were rendered lawful by parental consent.