J: Local Authority consent to Deprivation of Liberty, Re

A local authority holding a care order may consent to restrictions amounting to a deprivation of a child’s liberty where the decision falls within its statutory parental responsibility. The question is whether the decision is of such magnitude that it must be made or sanctioned by the court. That assessment is fact-sensitive. Where restrictions are inevitable, unavoidable, overwhelmingly in the child’s best interests and necessary to discharge the State’s positive obligation to protect life, the decision may fall within the authority’s powers under Children Act 1989, s 33. Valid consent means that the second Storck limb is not met and that no deprivation of liberty order is required.

The local authority applied for a care order and a deprivation of liberty order concerning J, a 14-year-old child with autism, ADHD and Pica. J was accommodated in a specialist children’s home and required continuous supervision and substantial restrictions, including controlled access to the community, a Pica-safe environment and supervision at night.

The care order was agreed. The issue was whether the restrictions constituted a deprivation of liberty under Article 5 of the European Convention on Human Rights and, if so, whether the local authority, holding parental responsibility under a care order, could consent to them. The court also considered whether a deprivation of liberty order was necessary.

1. Care order. The care order was made, there being no opposition and the parents and Guardian accepting that J required the specialist care provided.
2. Article 5 and consent. Applying Storck v Germany and Cheshire West v P, the first and third Storck limbs were satisfied because J was objectively confined and the restrictions were imposed by the State through the local authority or its care provider. However, objective confinement does not necessarily satisfy the second limb. If valid consent is given by a person with capacity or by a parent acting within the zone of parental responsibility, there is no deprivation of liberty within Article 5. The requirements of a procedure prescribed by law, proper safeguards and periodic independent checks do not arise where valid consent exists.
3. Scope of local-authority power. Under Children Act 1989, s 33(3)(b), the question is whether the decision is of such magnitude that it cannot be made by the local authority and must instead be made or sanctioned by the court. The category is not closed and will chiefly concern decisions with profound or enduring consequences.
4. Application. The assessment had to be contextual and individualised. For J, the restrictions were inevitable and unavoidable. A responsible carer would have been obliged to impose them because permitting unsupervised movement would expose him to obvious and serious risks. They were essential to his welfare and consistent with the State’s positive obligation under Article 2 to protect life. The decision therefore fell within the local authority’s statutory powers and was not of such magnitude as to require court approval.
5. Effect of earlier authority. The court declined to follow the contrary reasoning in Re D (A Child) (Deprivation of Liberty) and held that the local authority’s status as an organ of the State did not prevent it from giving valid consent. The court distinguished the Supreme Court decision in Re D (A Child) because it did not determine the scope of a local authority’s parental responsibility for a child under 16 in this context.
6. Order. The local authority could consent to the restrictions and the deprivation of liberty order was unnecessary.