J v Bath and North East Somerset Council & Ors

A local authority cannot provide valid consent to confinement which it has itself imposed or arranged for a child in its care. The State cannot thereby remove the confinement from the protection of article 5 of the European Convention on Human Rights.

Where the three elements of deprivation of liberty are established, article 5 requires independent authorisation and safeguards. Benevolent intentions, the child’s best interests and parental agreement do not remove that requirement. The domestic powers conferred by parental responsibility cannot override the Convention framework.

A profoundly disabled 14-year-old lived in a specialist children’s home under a restrictive care regime. He became subject to a final care order under section 31 of the Children Act 1989. His parents and the local authority agreed that the regime was necessary and in his best interests.

Lieven J held in [2024] EWHC 1690 (Fam) that the local authority could consent to the confinement through its statutory parental responsibility. On that basis, the consent element of the deprivation-of-liberty test was absent and no court order was required.

The child appealed with the support of his parents, the local authority and the interveners. The sole issue was whether a local authority responsible for a child’s confinement could give valid consent so as to avoid the need for judicial authorisation under article 5 of the European Convention on Human Rights.

1. The appeal was allowed. A local authority cannot give valid consent to confinement which the State, through that authority, has imposed or arranged for a child in its care. The authority cannot both create the conditions of confinement and consent to those conditions so as to remove the case from article 5.

2. The question had to be determined within the overriding framework of the Human Rights Act 1998 and article 5 of the European Convention on Human Rights. Analysis through domestic parental-responsibility powers or possible defences to civil claims did not answer the Convention issue. HL v United Kingdom and Cheshire West established that good faith, benevolent purpose and best-interests care do not displace the need for safeguards against arbitrary detention.

3. The three elements derived from Storck v Germany form one overall evaluation: confinement for a non-negligible period, absence of valid consent and imputability to the State. “Confinement” describes the first element. “Deprivation of liberty” describes the situation once all three elements are satisfied. Consent is therefore not a separate inquiry arising after a deprivation of liberty has already been established.

4. Where the elements are satisfied, article 5(1) requires authorisation through a procedure prescribed by law, while article 5(4) requires access to speedy judicial review. A local authority’s purported consent cannot remove those distinctive and cumulative protections. The child’s need for restrictions and the improbability of a damages or habeas corpus claim were legally irrelevant to that requirement.

5. The “great magnitude” approach taken from Re C and Re H was a false comparator. Those decisions concerned profound interference with the article 8 rights of parents who shared parental responsibility with a local authority. They did not concern the independent check required where article 5 is engaged. Keehan J’s conclusion in Re AB that a local authority could not consent to such confinement was correct.

6. The court deliberately left open whether a natural parent may consent to the confinement of a child under 16 who lacks Gillick competence. Its decision concerned consent by a local authority acting as an organ of the State.

7. A deprivation-of-liberty order was made in agreed terms. The case was remitted for review by the relevant Designated Family Judge.

1. Court of Appeal (Civil Division): In [2025] EWCA Civ 478, the court unanimously allowed the appeal, made a deprivation-of-liberty order and remitted the case for review by the relevant Designated Family Judge.

2. High Court, Family Division: Lieven J held in [2024] EWHC 1690 (Fam) that the local authority could consent to the child’s confinement by exercising parental responsibility under the Children Act 1989, so no deprivation-of-liberty order was required.