J v Bath and North East Somerset Council & Ors

This appeal concerned whether a local authority holding a care order under the Children Act 1989 (s 31) can, by consenting to a confinement it has arranged, remove the case from the protection of Article 5 of the European Convention on Human Rights and thereby avoid a deprivation of liberty safeguards (a DOLs order). The Court of Appeal held that the Strasbourg jurisprudence (in particular HL v United Kingdom) and the Supreme Court’s analysis in Cheshire West require independent procedural safeguards where the State is responsible for confinement, so a local authority cannot lawfully provide the consent that would defeat Article 5 safeguards.

The court applied the three-limb Storck/Cheshire West test for Article 5 engagement (confinement, lack of valid consent, and imputability to the State) and concluded that, even where parental responsibility is shared and the placement is unanimously regarded as in the child’s best interests, the State acting through a local authority cannot both create and authorise the confinement so as to avoid Article 5. The court therefore allowed the appeal and authorised a deprivation of liberty order, remitting oversight to the Designated Family Judge.

Background and facts:

• J is a profoundly disabled 14 year old with autism, ADHD and pica who has been accommodated in a specialist children’s home since April 2020. The local authority issued care proceedings and a final care order under the Children Act 1989, s 31 was made.
• The care regime imposes significant restrictions on J’s movement and daily life. It was common ground at first instance that the factual confinements met the objective and State-imputability limbs of the Article 5 (ECHR) test (Storck/Cheshire West), and the sole issue was whether valid consent existed so as to exclude Article 5.

Procedural posture:

• This is an appeal from Lieven J’s decision in the High Court (Family Division) ([2024] EWHC 1690 (Fam), 25 June 2024) in which she held that, as a matter of domestic law and parental responsibility (Children Act 1989, s 33), the local authority could consent to the confinement and therefore no DOLs order was required.
• The Court of Appeal heard detailed submissions from the parties and intervenors and reserved judgment.

Issues framed by the Court:

• Whether a local authority which is an organ of the State can validly consent to confinement of a child in its care so as to render Article 5 inapplicable and avoid the need for a DOLs order; and relatedly whether the domestic concept of parental responsibility can supply such consent.

Court’s reasoning and conclusion:

The court emphasised the Strasbourg authority HL v United Kingdom and the Supreme Court’s Cheshire West analysis: the essential purpose of Article 5 is to prevent arbitrary deprivation of liberty and to secure procedural safeguards and review (Article 5(1) and 5(4)).

Applying Storck/Cheshire West, the court concluded that where confinement is imputable to the State there must be independent procedural authorisation and review; permitting a State organ (the local authority) to cure limb (ii) by giving consent would undermine those protections and replicate the Bournewood gap identified in HL.

The Court of Appeal therefore rejected Lieven J’s application of the test imported from cases about decisions of "such magnitude" (Re C / Re H) as a reason to permit local-authority consent and endorsed Keehan J’s earlier conclusion (Re D / Re AB) that a local authority cannot supply the consent required to remove Article 5 protection.

The appeal was allowed, a DOLs order was made on agreed terms and the matter was remitted for review by the Designated Family Judge.

Wider context: the court noted the importance of preserving the Article 5 safeguards for children even where the confinement is benevolent and in their best interests, and that the human rights framework is the controlling legal structure.

This is an appeal allowed. The Court of Appeal held that, where confinement of a child in the care of a local authority is imputable to the State, the State (through the local authority) cannot validly consent so as to avoid Article 5 protections; independent procedural authorisation and review (a DOLs order or equivalent court authorisation) are required. Lieven J’s contrary conclusion was reversed because it failed to apply the Strasbourg and Supreme Court authorities (notably HL v UK and Cheshire West) that preserve Article 5 safeguards against State-imposed confinement.

Appeal from Lieven J in the High Court, Family Division ([2024] EWHC 1690 (Fam)), decision given 25 June 2024; appeal heard by Court of Appeal (Civil Division) and allowed 29 April 2025, with a DOLs order made by consent and the matter remitted to the Designated Family Judge.