Court of Appeal issues reasons for allowing appeal over whether councils can authorise deprivation of liberty where care order in place

The Court of Appeal has issued a written ruling outlining its reasons for allowing an appeal against a decision by Mrs Justice Lieven that a local authority could authorise the deprivation of liberty of a 14-year-old boy in exercise of its parental responsibility under a care order.

In J v Bath and North East Somerset Council & Ors [2025] EWCA Civ 478, the Court of Appeal – comprising the President of the Family Division, Sir Andrew McFarlane, Lady Justice King and Lord Justice Singh overturned the decision and made a deprivation of liberty order, concluding that to satisfy the requirements of ECHR Art 5, there must be an “independent check” on the State’s power to detain.

The case concerned a 14-year-old boy (J), who is a looked after child under s.20 Children Act 1989, with a complex set of diagnoses, including autism and ADHD. J is also diagnosed with Pica - an eating condition by which the individual tries to swallow non-food items.

From April 2020, J was accommodated by the local authority with the parents’ agreement.

He resides in a specialist children’s home, where he is subject to a high level of care and supervision.

In J: Local Authority consent to Deprivation of Liberty, Re [2024] EWHC 1690 (Fam), Mrs Justice Lieven concluded in June 2024 that, in circumstances where J was subject to a full care order under the Children Act 1989, and where it was “beyond dispute” that J needed to be looked after in such a way that his liberty was restricted to a degree sufficient to engage ECHR, Art 5, but where both of his parents and the local authority consented to that restrictive regime, there was no need for the High Court to make an order authorising the deprivation of J’s liberty.

In February the Court of Appeal allowed an appeal against Lieven J's ruling at the end of a hearing. It has now given its reasons.

Sir Andrew McFarlane said: “The sole issue on appeal is whether Lieven J was correct in her legal analysis or, as all the parties assert, she was wrong and a DOLs order was necessary.”

He introduced the legal background as follows:

“Under the European Convention on Human Rights, Art 5, ‘Everyone has the right to liberty and security of person’ and ‘No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’. In the six ‘cases’ that then follow in Art 5 (a)-(f), it is (d) which has particular application to a young person in J’s circumstances:

‘(d) the detention of a minor by lawful order for the purpose of educational supervision …’.”

“It is well settled (see Storck v Germany (App No 61603/00) (2006) 43 EHRR 6) that for Art 5 to be engaged, the following three elements must be present:

1. The ‘objective element’: confinement in a particular restricted space for a not negligible length of time; and
2. The ‘subjective element’: there has not been valid consent to the confinement in question; and
3. The deprivation must be imputable to the State.”

He continued: “In a reserved judgment, Lieven J concluded that it was lawful for the local authority, in the discharge of its parental responsibility, to consent to the continued restriction of J’s liberty, so that limb (ii) of Storck was not met and a DOLs order was not required. […] Although Lieven J considered that there was an argument that J’s confinement arose from his profound disability, rather than from the actions of the State, she concluded that:

“in the light of the caselaw, and in particular Cheshire West v P [2014] AC 896, I do not think that it is open to a court of first instance to reach that conclusion.”

“Lieven J therefore accepted that limbs (i) and (iii) of Storck were satisfied and the court’s focus was confined to the question of valid consent under limb (ii), which the judge identified as ‘whether the parents and the local authority, if a care order is made, can give consent to any deprivation of liberty’.”

Lieven J found that the decision to deprive J of his liberty was not in her view “a decision of such magnitude as to fall outside the LA's powers, but rather an exercise of their statutory duties to him.”

She concluded that the local authority had the power to consent to the restrictions and therefore to the deprivation of J’s liberty, and no DoLs order was needed.

All the parties in the appeal – the Children’s Guardian, Bath and North East Somerset Council and J’s parents – were of the view that although the care arrangements approved for the child at the centre of the case were in his best interests, it was still wrong that the council could impose arrangements which deprived a child of their liberty without the court’s approval.

The interveners – charities Article 39 and Mind, the Secretary of State for Education and the Children’s Commissioner – also backed the need for court oversight.

Outlining the two submissions made on behalf of the Secretary of State, Sir Andrew said: “The first [submission] was that the judge’s approach would have the result that the child is denied all protections under Art 5, and would mean that an organ of the State, that has itself deprived the child of liberty, or arranged for the same, could provide itself with consent to those arrangements. Whilst the judge was correct in her approach to domestic law, she fell into error in not understanding the additional restriction placed upon a local authority by Art 5.”

He continued: “Ms Clement’s second submission was that the reason why a local authority cannot itself provide valid consent is as set out in her first submission, it is not because a natural person with parental responsibility could not provide that consent.

“Ms Clement submitted that a parent with parental responsibility can provide relevant consent under Art 5 for a child under 16 years who lacks Gillick competence, provided the restrictive regime is in the child’s best interests and the decision falls within the ‘zone of parental responsibility’ (relying on Nielsen v Denmark (1988) 11 EHRR 175). Ms Clement drew a distinction between a natural person with parental responsibility, who has rights protected by Art 8 of the ECHR, and a local authority, as an organ of the State, which cannot itself have Convention rights. In Nielsen the ECtHR’s decision was firmly based upon the parent’s Art 8 rights to family life. The court determined, albeit at a time prior to its decision in Storck, that the child was not deprived of his liberty because his mother’s decision permitting hospitalisation ‘was a lawful exercise of parental powers under Danish law’, so that Art 5 was not applicable to the case.”

For the appellant child, Sophia Roper KC relied upon the following grounds of appeal:

1. Failure to have regard to the requirements of Art 5 for there to be some independent check or balance on the exercise of the State’s power to detain. It is inconsistent with Art 5 for an organ of the State to both create the conditions in which a vulnerable person is confined and then to be able to give valid consent so as to remove the case from Art 5.
2. Failure to give any, or any adequate, reasons for departing from established authority.
3. Taking account of, and relying upon, legally irrelevant matters such as the benevolent purpose of the placement, the unanimity of parents and professionals as to it being in J’s best interests, the unlikelihood of a claim for damages and the power of a local authority to consent to other interventions in J’s life.
4. Failure to consider that the result of the decision was that the local authority could increase the degree of restriction placed on J, or move him to alternative accommodation, without the agreement of his parents or any other scrutiny.

Counsel for the local authority joined the Secretary of State in focussing on the issue of whether ‘the State as the detainee authority can authorise its own detention of a child’ so as to bring the circumstances of the case outside the scope of Art 5.

It was argued that if a local authority were able to consent to detention that it had itself arranged, this would leave the child with none of the essential protections required by Art 5.

Discussing the case, Sir Andrew said: “I am clear that the question of whether it is necessary for the court to authorise the deprivation of liberty of a child who is the subject of a care order, where the local authority consents to the child’s confinement, must be determined in accordance with the Human Rights Act 1998 in a manner that is compatible with the ECHR.

“Rather than analysing matters through the lens of the domestic law relating to the exercise of parental responsibility, or possible defences to potential civil litigation, it is the structure imposed by ECHR, Art 5 that must be applied. In this regard, the lodestar is the decision in 2004 of the ECtHR in HL v United Kingdom.”

He continued: “HL v UK concerned an adult who had, for many years, been resident at Bournewood Hospital as a consequence of autism and profound mental handicap. Following a deterioration in his behaviour during a period of home leave, he was admitted to hospital informally and, because of his apparent compliance, no proceedings were taken to detain him under the Mental Health Act 1983. Despite the benevolent motive underlying the care of the hospital, and the clear need for him to be cared for in a restricted regime, the ECtHR held that the circumstances amounted to a breach of Art 5 and that there had been a denial of access to any formal procedure for review or challenge of the care regime on his behalf.”

He noted that although HL v UK relates to an adult, the underlying emphasis on the ‘essential purpose’ of Art 5 “must apply in equal measure to a child”.

Sir Andrew went on quote Baroness Hale’s conclusion at paragraph 56 of Cheshire West, which held that, no matter how benign the intentions of the care-providing local authority may be, ‘the purpose of Art 5 is to ensure that people are not deprived of their liberty without proper safeguards, safeguards that will secure that the legal justifications for the constraints which they are under are made out’.

He said: “The decision in Cheshire West is binding on this court, as it was on the learned judge. It is a decision that naturally flows from the ECtHR’s judgment in HL v UK, and it is determinative of the issue in this appeal. A child in the position of J in the present case, must be afforded the benefit of the checks and safeguards under Art 5(1), or separately (as HL v UK from paragraph 125 onwards makes plain) of access to a process in court under Art 5(4).”

He continued: “The effect of the judge’s decision, where a local authority consents to the confinement by the State of a child in their care, would be to remove the case from Art 5, thereby avoiding the important protection, safeguards and independent authorisation by a court that would otherwise be required. Irrespective of whether it may be said that, as a matter of domestic law, a local authority may give valid consent if they hold parental responsibility under a care order, HL v UK and Cheshire West make it plain that it is simply not open to the State, through the local authority, to avoid the constraints of Art 5.”

He concluded that Lieven J’s analysis in the present case was “in error”, noting: “That error, in short, was to focus on whether, as a matter of domestic law, a local authority may provide ‘valid consent’ in order to avoid engaging limb (ii) of Storck. If, instead, the focus had been, as it should have been, upon the overarching purpose of Art 5, as determined by HL v UK and Cheshire West, the inevitable conclusion would have been that, irrespective of the domestic law relating to parental responsibility, the State can never give valid consent in these circumstances.” (judge’s emphasis).

Allowing the appeal, the Court of Appeal made a deprivation of liberty order and remitted the case to be reviewed by the relevant Designated Family Judge.

Agreeing with the reasons given by the President of the Family Division, Lady Justice King said: “The judge focused her analysis at paragraph 31 of her judgment by reference to the cases of Re C and Re H namely as to whether ‘the decision that the LA is being asked to make under s 33(3)(b) is “of such magnitude” that it cannot be made by the LA, but rather must be made by the Court’. With respect to the judge that in my view is a false comparator.

“Those cases relate to issues which represent such a serious invasion of the Article 8 rights of parents who share parental responsibility with the local authority, or put another way are ‘of such magnitude’, that the local authority should not exercise their statutory power to limit the parents’ right to exercise their parental responsibility without the parents first having the opportunity to express their views to a court.”

She added: “In order to satisfy the requirements of Art 5, there must be an independent check on the State’s power to detain. The local authority is an organ of State which, albeit acting in their best interests, is confining the child. The second limb of Storck requires there to be valid consent to that confinement. It is as Ms Roper submitted, inconsistent with Art 5 for that organ of State to ‘both create the conditions in which a vulnerable person is confined and then to be able to give valid consent [to that confinement] so as to remove the case from Art 5.’”

Finally, Lord Justice Singh said: “This case provides a powerful example of the way in which human rights issues can arise in any legal context. The Human Rights Act 1998, and the Convention rights to which it gives effect in domestic law, constitute the overriding legal framework for the determination of such issues, in whatever jurisdiction they arise. It is important that sight should not be lost of that framework, and the values which underlie the fundamental rights which it seeks to protect, whatever the context in which those issues arise.”

Lottie Winson