East Riding of Yorkshire Council v The Mother & Ors

For a child under 16 who lacks Gillick competence, parental consent may satisfy limb (b) of Storck where the proposed confinement falls within the proper exercise of parental responsibility.

The relevant zone is extensive but not limitless. The court must consider the child’s age, maturity, understanding, disability, behaviour, risks and welfare. Physical restraint may form part of the confinement and may nevertheless fall within parental responsibility where it is necessary to protect the child and others and is proportionate. The fact that the restrictions amount to confinement, or that they extend beyond the specific purposes permitted by regulation 20 of the Children’s Homes (England) Regulations 2015, does not itself prevent valid parental consent.

The local authority accommodated L, aged 12, under section 20 of the Children Act 1989. L has autism, significant sensory-processing needs and behaviour that can place her and others at risk. At Rainbow Cottage she was subject to continuous 2:1 supervision, locked doors and gates, restrictions on leaving, and proportionate Team Teach physical interventions.

L was not Gillick competent. Her parents consented to the care arrangements and restrictions, considering them necessary and in her best interests. The local authority sought a declaration that the parental consent was valid, or alternatively an order under the inherent jurisdiction authorising the deprivation of liberty.

The central issue was whether parental consent could satisfy limb (b) of Storck for a child under 16 whose arrangements objectively amounted to confinement.

1. Outcome. L’s arrangements satisfied limb (a) of Storck because she was under complete supervision and control and was not free to leave. The confinement was attributable to the State, satisfying limb (c). Her parents’ consent was valid for limb (b), so the arrangements did not constitute a deprivation of liberty for Article 5 purposes. The court proceedings were therefore unnecessary.
2. Parental responsibility. The reasoning in Re D [2019] concerned children aged 16 or 17 and did not determine the position of children under 16. The earlier decision in Re D [2015] therefore remained applicable. A parent may consent to the deprivation of liberty of a child under 16 who lacks Gillick competence, provided the decision falls within the zone of parental responsibility.
3. Limits of the zone. The zone is ascertained by reference to contemporary community standards. Relevant considerations include the child’s age, maturity, understanding, disability, behaviour, the risks presented, the nature of the intervention and whether the decision is made for the child’s welfare. It is not an unlimited power.
4. Application. For a 12-year-old with L’s needs, continuous supervision, locked doors and gates, and restrictions on leaving were within the ordinary scope of parental responsibility. The Team Teach interventions were objectively components of the confinement, but the parental consent to them was also within that scope because the interventions were necessary to protect L’s safety and welfare and were proportionate.
5. Regulation 20. The court rejected the submission that all the restraint fell within regulation 20 of the Children’s Homes (England) Regulations 2015. The purposes for which restraint was used went beyond regulation 20(1)(a) and (b). That did not prevent parental consent from being valid.
6. Safeguards and medication. The parents’ active involvement, continuing ability to withdraw consent, and the statutory regulatory scheme provided effective safeguards on the facts. The parents could also consent to medical treatment, including medication, for a child under 16 who lacked Gillick competence where they considered it in the child’s best interests.

First-instance decision. The judgment records an earlier order by HHJ Wildblood KC permitting the local authority to invoke the inherent jurisdiction and authorising L’s conveyance to Rainbow Cottage, followed by an adjournment for determination of the parental-consent issue.