A Local Authority v EL & Ors

A local authority may seek authorisation under the inherent jurisdiction for restrictions amounting to a deprivation of liberty where a disabled child aged 16 or 17 lacks capacity, parental consent is ineffective, and no statutory scheme provides lawful authority.

The court must apply the three components of the Storck test: confinement in a restricted place for a non-negligible period, absence of valid consent, and attribution of responsibility to the State. Section 100 of the Children Act 1989 prevents the inherent jurisdiction being used to require removal into local-authority accommodation, but does not prevent authorisation of restrictions where the child remains voluntarily accommodated by a parent and the order does not displace the statutory scheme.

The local authority applied for permission to deprive JL, aged 17, of her liberty. JL had severe disabilities, lacked capacity, and lived principally with her mother, with respite care, education and funded support provided by the local authority.

JL was not subject to a care order and was no longer a looked-after child. The proposed arrangements included constant two-to-one supervision, locked doors, restraint when necessary and securing JL in a buggy during transport. The issue was whether the High Court could authorise those restrictions under its inherent jurisdiction without infringing section 100 of the Children Act 1989.

1. Application granted. The restrictions amounted to a deprivation of liberty and were authorised under the court’s inherent jurisdiction until JL reached 18 on 23 January 2023.
2. The court applied the three components identified in Storck v Germany: an objective confinement in a particular restricted place for a non-negligible period, lack of valid consent, and attribution of responsibility to the State. The proposed supervision, locked doors, restraint and transport restrictions would not ordinarily be imposed on a young person of JL’s age without her disabilities. The objective component was therefore satisfied.
3. JL could not give valid consent because of her mental disability. Her parents could not authorise the deprivation through parental responsibility. The local authority also could not consent because JL was neither looked after nor subject to a care order. Court authorisation was therefore required.
4. A City Council v LS was distinguishable. There, the proposed order would have required removal from parental care and accommodation by the local authority, contrary to section 100(2)(b) of the Children Act 1989. Here, JL’s parents did not object to her accommodation, she remained principally at home, and the order authorised restrictions rather than the placement itself. The application did not circumvent the statutory scheme.
5. The State-responsibility component was satisfied because the local authority had investigated JL’s circumstances and continued to fund and organise the care services involving the restrictions. The restrictions were necessary in JL’s best interests and to protect her from serious harm.
6. No further review was required because the order would expire shortly when JL reached adulthood. Thereafter, her care and any restrictions would fall to be considered under the Mental Capacity Act 2005.