Medway Council v The Father & Anor

For a child under 16 who lacks Gillick competence, a parent may consent to confinement amounting objectively to a deprivation of liberty, provided the consent is an appropriate exercise of parental responsibility and does not leave the child without safeguards. The issue is fact-specific. The court must consider the individual child, the decision required, the child’s age, maturity, understanding, vulnerabilities and welfare interests. Care and treatment do not necessarily amount to confinement, although constant supervision, control and locked premises may do so. Even where confinement is attributable to the State, there is no deprivation of liberty if valid parental consent falls within the zone of parental responsibility.

Medway Council applied under the inherent jurisdiction for authorisation to deprive O, a profoundly disabled 15-year-old, of her liberty for 12 months. O lived with her father and received support under an education, health and care plan and Children Act 1989 section 17. The proposed arrangements included constant supervision, locked doors, personal care and restraint during transport. O lacked capacity to consent to her care or deprivation of liberty. Her father consented to the care package, while the Children’s Guardian argued that the arrangements were either not confinement or were within the father’s parental responsibility. The central issue was whether the father could consent to the relevant confinement.

1. Application dismissed. The authorisations sought were unnecessary because O was not deprived of her liberty.
2. For a child under 16 lacking Gillick competence, parental consent to confinement may fall within the zone of parental responsibility. The zone is fact-specific. It depends on the individual child, the decision to be made, the child’s age, maturity, understanding, vulnerabilities and best interests. It is generally wider where the child lacks Gillick competence.
3. The court adopted the legal summary in Wigan BC v Y [2021] EWHC 1982 (Fam), which cited with approval the guidance in Re RD [2018] EWFC 47. The observations in Re D (A Child) [2019] UKSC 42 left the position for children under 16 open. The court followed the conclusion and reasoning in Lincolnshire CC v TGA and others [2022] EWHC 2223 (Fam).
4. At home, ordinary parental supervision and locked doors were not attributable to the State. Agency staff providing personal care did not create confinement, although constant one-to-one supervision when the father was unavailable or when O was in the community did. That confinement was attributable to the State, but the father’s consent was within his parental responsibility.
5. At school, the locking system and arrangements to return O if she left objectively constituted confinement attributable to the State. The father’s consent remained valid, having regard to O’s vulnerabilities, the school’s safeguards and lawful restraint under section 93 of the Education and Inspections Act 2006.
6. At the short-stay home, personal care was not confinement. Constant supervision, locked premises and night-time redirection were confinement attributable to the State, but the father’s consent to those safety measures was an appropriate exercise of parental responsibility. Transport arrangements, including the three-point harness, were treated in the same way.
7. The court noted that parental responsibility has limits and that public-law safeguards remain available where parental decisions are contrary to welfare or expose the child to inhuman or degrading treatment. Those circumstances did not arise.