G, Re (A Child)

A deprivation of liberty order made under the inherent jurisdiction must not be used to compel accommodation under Children Act 1989 section 20. A capacitous young person aged 16 or over may consent to, or withdraw consent from, voluntary accommodation. Consent is linked to the placement offered: the young person may reject a proposed placement and withdraw consent to accommodation.

Section 20(6) requires the local authority to ascertain and give due consideration to the child’s wishes and feelings, but does not allow the child to dictate the placement while consenting to accommodation. The court must distinguish authorising deprivation of liberty from authorising the placement itself. Any restrictions must be lawful, necessary, proportionate and in the child’s best interests.

G, aged 17, was accommodated by Kent County Council under section 20 of the Children Act 1989. He had capacity and had consented to his accommodation, but objected to the placement preferred by the local authority. He had been admitted voluntarily to hospital and was medically fit for discharge.

The local authority sought permission to invoke the inherent jurisdiction and an order authorising G’s forcible removal from hospital to the proposed placement, where restrictions would prevent him absconding. G and his Children’s Guardian opposed the application, arguing that it would circumvent the statutory scheme and was contrary to his welfare. The issues were whether the court had jurisdiction to make the order and, if so, whether deprivation of liberty was in G’s best interests.

1. The application was dismissed. The interim deprivation of liberty order was not extended. G remained a ward of court, and the local authority agreed to accommodate him at his preferred placement.

2. Section 20 accommodation is voluntary and distinct from compulsory intervention under section 31 of the Children Act 1989. G was 17, had capacity, and could consent to his own accommodation under section 20(11). He could also withdraw that consent. His parents could not provide valid informed consent because G had withheld information necessary for informed decision-making; in any event, his father objected.

3. Section 20(6) required the local authority to ascertain and give due consideration to G’s wishes and feelings. It did not give him an absolute right to dictate the placement, but consent to local-authority accommodation and consent to the proposed type of placement were inextricably linked. A capacitous young person could reject a placement and withdraw consent to accommodation.

4. The proposed order would have authorised G’s forcible removal to, and confinement in, a placement to which he did not consent. Its primary purpose was therefore to compel accommodation. That offended section 100(2)(a) and (b), which prevented the inherent jurisdiction being used to require a child to be placed in the care of, or accommodated by, a local authority.

5. The court distinguished the jurisdiction to support arrangements already validly agreed. Wardship could support voluntary accommodation, but could not create a power to provide accommodation which the statutory scheme did not otherwise permit.

6. Alternatively, the restrictions amounted to a deprivation of liberty under article 5 of the European Convention on Human Rights. They were not in G’s best interests and were neither necessary nor proportionate. His reasoned objections, capacity, recent conduct and willingness to accept a less restrictive placement supported that conclusion.