Re: QX (Parental Consent for Deprivation of liberty: Children under 16)

Parental responsibility may, in an appropriate case, include consent to arrangements which would otherwise objectively deprive a child under 16 of liberty. The decisive question is whether the consent is a proper exercise of parental responsibility and is given freely in the child’s interests. Where valid consent is established, Article 5 of the European Convention on Human Rights is not engaged and court authorisation is unnecessary. The court should assess the arrangements by reference to a normal child of the same age, rather than the child’s disability. A consensual accommodation arrangement under Children Act 1989, section 20 may continue where its statutory conditions are met; care proceedings should not be brought merely because the arrangement is intended to be long term.

The local authority accommodated QX, aged 15, under section 20 of the Children Act 1989. QX had autism and severe learning disabilities, lacked Gillick competence, and lived under continuous supervision and control in a placement from which he was not free to leave without escort.

Four people held parental responsibility. After the primary carers asked the local authority to provide care, all holders of parental responsibility agreed to the care plan. The local authority withdrew its applications for a care order and authorisation under the inherent jurisdiction. The court determined whether the care threshold was met and whether parental consent prevented the need for deprivation-of-liberty authorisation.

1. Care order. The care-order application was withdrawn and no care order was made. The reasoning in Lancashire County Council v PX was applied. Where parents recognise that they cannot safely manage a child because of disability and ask the local authority to provide suitable care, the threshold is not established merely by the child’s resulting behaviour or need for professional care. Section 20 has no time limit, and care proceedings should not be issued solely because the local authority considers long-term section 20 accommodation unlawful.
2. Objective deprivation of liberty. The court accepted the three components identified in Storck v Germany: objective confinement, absence of consent, and State responsibility. QX’s arrangements satisfied the objective confinement requirement under Cheshire West. The comparator was a normal child of the same age, not a child with QX’s disabilities, and the restrictions had to be well in excess of those ordinarily imposed on such a child.
3. Parental consent. Following Lincolnshire County Council v TGA and Re D (Deprivation of Liberty), parental responsibility may include consent to an objective deprivation of liberty for a child under 16. The relevant question is whether the decision falls within the zone of parental responsibility and is made in the child’s interests. It is not substituted consent. The position changes at 16, when the Mental Capacity Act 2005 places the matter within the Court of Protection’s jurisdiction.
4. Application. All holders of parental responsibility understood QX’s needs, participated in planning, received independent legal advice, and consented freely to the placement. Their agreement was therefore valid and the court had no further role in scrutinising or authorising the arrangements.
5. Orders. The care-order application was withdrawn. The application for an order under the inherent jurisdiction was dismissed and the existing authorisation was discharged. The court nevertheless urged local authorities to proceed cautiously where parental consent may be affected by pressure, distress, changing placement circumstances, or a desire to satisfy the child.

First-instance decision. The judgment noted that the Court of Appeal had reversed Re J: Local Authority Consent to Deprivation of Liberty, but that judgment had not yet been handed down. No appeal history for the present proceedings was stated.