High Court rejects renewed application for deprivation of liberty of teenage girl

May 27, 2025

The High Court has refused to make an order permitting a local authority to continue depriving a 15-year-old girl of her liberty, finding that depriving a child of their liberty for “pure welfare reasons” or to prevent a child absconding does not come within article 5(1) of the Convention (right to liberty and security).

In A Local Authority v LB & Ors [2025] EWHC 1264 (Fam) (25 May 2025), David Lock KC, sitting as a deputy High Court judge, declined to continue the existing Deprivation of Liberty Safeguards (DOLS) order and instead adjourned the case to allow the local authority "an opportunity to present evidence to support a case that it was justified in making arrangements which had the effect of depriving LB of her liberty".

The case concerned LB, a 15-year-old girl.

Parental responsibility for LB is shared between the local authority and her parents, on the basis that her parents could not provide a proper level of parenting support to her because of domestic violence initiated by her father against her mother and the effects of drug taking in the household.

The judge noted that LB does not wish to be in care and wishes to return to live with her mother.

In December 2024, LB absconded and went back to live with her mother. In February 2025, HHJ Bailey made a recovery order to enable the local authority to recover LB and to return her to a placement which was not local to where she lived.

On the same day, HHJ Bailey, sitting as a Judge of the High Court, made an order permitting the local authority to instruct the care provider to put in place arrangements which had the effect of depriving LB of her liberty at the placement. The order expired in May this year.

The judge said: “The C66 application seeking the DOLS order does not specify the basis upon which the Local Authority is seeking the order save for referring to the fact that the Local Authority was also applying for a recovery order. The witness statement by the social worker to support the application for a recovery order states:

"[LB] needs to be returned to her placement as a matter of urgency and up until this point has refused any encouragement to do so by her placement and social work staff. There is also no support by her mother [CB], therefore we respectfully request that the court provide a Recovery Order to allow LB to be returned to her placement as a matter of urgency".”

The judge went on to outline the following three issues, which meant that he should not make a further DOLS order:

Issue 1: Should s25 accommodation have been explored?
Issue 2: Is section 100(4) Children Act 1989 satisfied?
Issue 3: Can the local authority make a case that this deprivation of liberty was for the purpose of educational supervision?

On Issue 1, he said: “There are statutory provisions which specifically provide for a legal framework that local authorities can use in a case where a child in care absconds from a placement. Section 25 of the Children Act 1989 contains provisions which enable a local authority to apply to place a child in secure accommodation. S25(1) provides:

"Subject to the following provisions of this section, a child who is being looked after by a local authority in England or Wales may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ("secure accommodation") unless it appears—

(a) that—

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds, he is likely to suffer significant harm; or

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons"

He continued: “If a Local Authority wishes to place a child in secure accommodation, it can make an application to the court under s25(2) for an order permitting such a placement and the court can authorise the placement for a period of up to 3 months, and thereafter periods of up to 6 months.

“In this case it does not appear that any consideration was given by the Local Authority as to whether (a) they could make a case that LB met the criteria under s25 or (b) if they did so, whether there was secure accommodation that might be available for LB. Instead, it appears that the Local Authority made an application under the inherent jurisdiction of the High Court to permit the placement provider to impose restrictions on LB which had the effect of depriving her of her liberty. Thus, instead of exploring the statutory framework applied to children who abscond from care and provides protections for the child, this Local Authority appears to have bypassed that statutory framework by applying for an order under the inherent jurisdiction.”

Turning to issue 2, the judge noted that in Re T, Lady Black identified that, in order to bring a case under the inherent jurisdiction, the court had to give the local authority leave under s100 of the Children Act 1989.

S 100(4) provides:

"The court may only grant leave if it is satisfied that -

(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm"

Mr Lock noted that as the present case was a renewed application for permission under s110, the local authority was required to advance a case to explain why it invited the court to reach the conclusion that, if a DOLS order was not made, LB was likely to suffer “significant harm”.

He said: “However, there is no evidence (as far as I can see) that LB suffered any significant level of harm when she went back to living with her mother in late 2024 and early 2025. She is now nearly 16 years old and is rapidly moving towards being an adult and thus her situation is wholly different to that of a much younger and more vulnerable child. It is clear that the social workers have concluded that it would be better for LB to live in a placement where she can develop her life skills and that this part of her education would be unlikely to be delivered at her mother's home.

“However, at present, as far as I can determine, the evidence does not explain whether the social workers have asked themselves the questions about how likely it is that LB will be exposed to harm at her mother's house, what the nature of that harm would be and whether it can be said that it is likely that would suffer substantial harm if she was not prevented from returning to live with her mother.”

Concluding issue 2, he said: “I do not consider that, in the absence of any evidence focusing on this issue, I can reach a decision as to whether to give leave under s100 of the Children Act 1989 at this hearing. However, I have not dismissed this application but have adjourned it so as to enable the social workers to focus on the statutory test and to provide their assessments to the court before the next hearing.”

The third issue was whether the local authority had “properly provided evidence” to bring the case within any of the sub-paragraphs of article 5(1) of the Convention.

The relevant parts of article 5 provide:

"Right to liberty and security

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; …

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

The judge set out the following preliminary points before focusing on the article 5 issues:

The fact that the local authority has parental responsibility as a result of the care order does not, of itself, entitle the local authority to authorise the placement provider to impose restrictions on LB's movements if those restrictions amount to a deprivation of her liberty.
The local authority is entitled to apply to the High Court to authorise the deprivation of liberty but it must demonstrate that the proposed deprivation of liberty is justified by coming within one of the permitted sub-paragraphs of article 5(1) of the Convention.
In addition to satisfying the court that the case comes within one of the permitted sub-paragraphs of article 5(1), the local authority must show that the removal of the child's liberty satisfies the test of proportionality, which in practice means that the restrictions are proportionate to the risks that the child would face if the restrictions were not imposed.

The local authority accepted that the primary purpose relied upon to justify the deprivation was to keep LB safe in the sense that the restrictions were intended to prevent LB from absconding and returning to live with her mother.

The judge said: “Ms Slater for the Local Authority frankly accepted that, once the point had been raised, depriving a child of their liberty for pure welfare reasons or to prevent a child absconding could not come within article 5(1).

“However, Ms Slater submitted that the Local Authority should be given time to prepare a case that it was permissible to deprive LB of her liberty under article 5(1)(d), namely "for the purpose of educational supervision" but she accepted that she was not in a position to be able to make that case today.”

This raised the question as to what was meant by the term "educational supervision" in article 5(1) of the Convention.

The judge said: “I fully accept that the term "educational supervision" in article 5(1) has to be widely interpreted and is far wider than formal classroom-based education. However, whilst educational supervision encompasses a wide concept, in my judgment it can be wholly equated with a child's welfare and restrictions cannot be justified under this part of the convention primarily to prevent a child absconding.”

He continued: “In this case there was some, albeit limited, evidence to show that LB was being assisted by staff at the placement to learn a series of life skills with a view to her having the tools to make better decisions for herself going forward. However, [counsel for the local authority] accepted that this evidence fell a long way short to evidence which could satisfy a court that the case came within article 5(1)(d).”

The judge declined to continue the existing DOLS order and instead adjourned the case to 28 May 2025 so that the local authority had "an opportunity to present evidence to support a case that it was justified in making arrangements which had the effect of depriving LB of her liberty".

David Lock KC concluded: "It follows that, at present, there is no authorisation which allows care staff actively to deprive LB of her liberty. I am not convinced that, in practice, this will make a huge amount of difference because the facts show that, notwithstanding the existing order, LB has absconded on a number of occasions since the DOLS order was made. It may well be that, in the next 2 weeks or so, both the Local Authority and LB will understand whether the DOLS restrictions are really needed to enable placement staff to deliver a structured programme of support to LB."

He added: "If [LB] absconds on a regular basis, that will strengthen the Local Authority's case that the DOLS is needed. Conversely, if LB and the placement staff show that they can work together without the need for a DOLS, that may lead the Local Authority to consider its position and/or may cause a future court carefully to examine the necessity of reinstituting the DOLS order."

Lottie Winson