Re E (DOLs)

In determining whether a child’s deprivation of liberty should continue, the court must identify the objective confinement, absence of valid consent and State responsibility required by Article 5. A 16- or 17-year-old’s parental responsibility holder cannot consent to arrangements amounting to a deprivation of liberty. The court should examine safeguards analogous to those under the Mental Capacity Act 2005 and decide whether the arrangements are necessary and proportionate. The civil standard of proof applies to a welfare-based deprivation of liberty application. On an application to discharge a care order, the child’s welfare remains paramount; the statutory threshold need not be re-proved. The applicant must show that discharge would serve the child’s best interests, followed by a proportionality cross-check under Convention rights.

The proceedings concerned E, aged 17, who had complex health and behavioural needs and was subject to a care order in favour of the Royal Borough of Greenwich. He lived in a residential placement under an existing deprivation of liberty order. The local authority sought an extension of the deprivation of liberty arrangements. E’s parents sought discharge of the care order and proposed that E return to their care. The central issues were whether continued confinement was lawful and in E’s best interests, what standard of proof applied, and whether discharge of the care order was justified.

1. Deprivation of liberty. The court held that the three Storck components were present: confinement in a restricted place for a non-negligible period, absence of valid consent, and attribution of responsibility to the State. E’s arrangements therefore engaged Article 5 of the European Convention.
2. Because E was aged 17, parental responsibility did not authorise his parents, or the local authority exercising parental responsibility under the care order, to consent to arrangements amounting to a deprivation of liberty. Such deprivation required judicial authorisation under the inherent jurisdiction. The court followed the reasoning in Re D and considered the safeguards analogous to those under the Mental Capacity Act 2005.
3. The relevant safeguards included E’s capacity, whether the proposed measures were necessary and proportionate, consultation with his family, and whether it was reasonable to suppose that he would object to the placement. E lacked the necessary capacity. The measures were necessary and proportionate to secure his welfare and the safety of E and others.
4. Standard of proof. The burden lay on the local authority for the extension application and on the parents for discharge of the care order. The civil standard of proof, the balance of probabilities, applied to the welfare-based deprivation of liberty application. The judge stated that, in any event, the evidence satisfied the criminal standard.
5. Discharge of care order. Applying TT (Children: Discharge of Care Order), E’s welfare was paramount, the welfare checklist was considered, and Convention-rights interference was assessed for necessity and proportionality. The parents had not established that discharge would serve E’s best interests. The local authority was not required to re-prove the section 31(2) threshold.
6. The existing placement provided the structure, supervision and professional network required to manage E’s significant risks. Return to parental care or a supervision order would expose E and others to an unacceptable risk of harm and was likely to result in placement breakdown.
7. The court dismissed the parents’ application to discharge the care order and extended the deprivation of liberty order until E’s 18th birthday. The order authorised specified restrictions and required minimum force or restraint, least-restrictive measures, proportionality and respect for E’s dignity. The local authority was directed to consider arrangements enabling E’s religious observance.

First-instance decision. No appellate history was stated in the judgment.