J v Bath and North East Somerset Council & M [2025] EWCA Civ 478 concerns an appeal of a decision by Mrs Justice Lieven. Lieven J had held that there was no need for the High Court to make an order authorising the deprivation of J’s liberty in circumstances where both J’s parents and the local authority consented to the deprivation of liberty.
J is a 14-year-old boy with a number of diagnoses, including autism, ADHD, and Pica. J lives in a specialist children’s home. J is subject to a final care order under Section 31 of the Children Act 1989 (“CA 1989”). The Court of Appeal spelled out that the “major consequence of any care order is that it gives parental responsibility to the local authority, which is shared with the child’s parent(s), but with the local authority having control over the manner in which parental responsibility is exercised [CA 1989, s 33(3)]”.
The First Instance Decision
Under Article 5 ECHR, “Everyone has the right to liberty and security of person”. In order for Article 5 ECHR to be engaged, the following three elements must be present (Storck v Germany (App No 61603/00) (2006) 43 EHRR 6):
- The ‘objective element’: confinement in a particular restricted space for a not negligible length of time; and
- The ‘subjective element’: there has not been valid consent to the confinement in question; and
- The deprivation must be imputable to the State.
The care plan was for J to remain in the children’s home. The regime in that children’s home triggered the application for a deprivation of liberty order.
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. She therefore concluded that limb (ii) of Storck, the subjective element, was not met and that a deprivation of liberty order was not necessary.
Lieven J’s decision-making is summarised by the Court of Appeal below:
In practice the real purpose of a DOLs order is to provide a defence against any future claim for unlawful detention or breach of Article 5, by making a declaration that any deprivation (within the terms of the order) would be lawful. In theory at least, a DOLs order would also provide a defence to a claim for habeas corpus. However, that exposes the oddity of requiring a DOLs order in a case such as this. There is no possible dispute that it is in J’s best interests for him to be deprived of his liberty in accordance with the restrictions imposed in the order.
In principle if the Storck criteria are met then the deprivation of liberty is a breach of Article 5 and in all probability an unlawful detention at common law. However, in reality the consequences of such a breach, in a case such as J’s, are extremely limited. That is relevant because in my view it exposes why the local authority in J’s case can consent to the deprivation of liberty.’
Lieven J considered that it was ‘inconceivable’ that a writ of habeas corpus would be granted to release J from the children’s home, or that he would be awarded damages for unlawful detention, if no DOLs order were made. The judge therefore concluded that ‘it is therefore quite difficult to see what the point of a DOLs order is on the facts of a case like J’s’.
At paragraph 19, the judge accepted the need to ensure that safeguards are in place and that court oversight of the process may be required as Art 5 provides that any deprivation of liberty must be ‘in accordance with a procedure prescribed by law’, but she held that ‘the need for a legal process … cannot itself be relevant to the substantive content of the right’ so that, if the local authority is able to give valid consent, there was no need for a DOLs order ‘whatever the possible benefits of “safeguards” of a court process.
Lieven J referred to Re H [2020] EWCA Civ 664 andRe C (Child in Care: Choice of Forename) [2016] EWCA Civ 374. These cases concern respectively vaccination and registration of a child’s forename. To summarise, the courts in those cases determined that those decisions were of “too great a magnitude” to be determined without guidance of the court. Lieven J stated that the test for whether a local authority could make a decision or grant consent with respect to a child in their care was whether the consequence of the decision was of great magnitude to the child: “is the decision that the LA is being asked to make under s.33(3)(b) “of such magnitude” that it cannot be made by the LA, but rather must be made by the Court”.
In Re D (A Child) (Deprivation of Liberty) [2015] EWHC 3125 (Fam), Keehan J explained that:
Where a child is in the care of a local authority and subject to an interim care, or a care, order, may the local authority in the exercise of its statutory parental responsibility (see s.33(3)(a) of the Children Act 1989) consent to what would otherwise amount to a deprivation of liberty? The answer, in my judgment, is an emphatic “no”. In taking a child into care and instituting care proceedings, the local authority is acting as an organ of the state. To permit a local authority in such circumstances to consent to the deprivation of liberty of a child would (1) breach Article 5 of the Convention, which provides “no one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”, (2) would not afford the “proper safeguards which will secure the legal justifications for the constraints under which they are made out”, and (3) would not meet the need for a periodic independent check on whether the arrangements made for them are in their best interests.
Lieven J concluded that, while the restrictions are imposed by the State, this does not mean that the local authority, acting as the corporate parent, cannot consent to that deprivation. This contradicts the decision in Re D.
Lieven J was also of the view that the decision to deprive J of his liberty “is an inevitable one, which no reasonable court or parent would depart from”:
In reality it is the obligation of any responsible carer of J to place restrictions upon him in order to keep him safe. Therefore, far from the restrictions amounting to a serious infringement of his rights that no LA could lawfully consent to, they are restrictions essential to ensuring his best interests, and indeed required by the State’s positive obligations under Article 2 ECHR to protect his life. In those circumstances in my view they fall within the LA’s statutory powers in s.33 CA.
Therefore the decision to “deprive him of his liberty” is not in my view a decision of such magnitude as to fall outside the LA’s powers, but rather an exercise of their statutory duties to him. In my view the LA have the power to consent to the restrictions and therefore to the deprivation of his liberty, and no DoLs order is needed.
The Appeal
The decision was appealed by all parties. The Secretary of State for Education, Article 39/Mind, and the Children’s Commissioner for England were intervenors in the appeal. Of preliminary interest was the Court of Appeal’s comment that “where a judge thinks it necessary to raise an important point of law which has not been raised by any of the parties, there is likely to be real benefit in adjourning the case to allow the parties to take stock and make considered submissions on the issue”.
The grounds of appeal of the various parties are summarised below:
- Lieven J’s approach would mean that J is denied all protections under Article 5 ECHR. 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.
- There is a distinction between a natural person with parental responsibility, who has rights protected by Article 8 of the ECHR, and a local authority, as an organ of the State, which cannot itself have Convention rights.
- Failure to have regard to the requirements of Article 5 for there to be some independent check or balance on the exercise of the State’s power to detain. It is inconsistent with Article 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 Article 5.
- Failure to give any, or any adequate, reasons for departing from established authority.
- 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.
- 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.
With reference to case law, the Court of Appeal held that:
- Although HL v UK (Application: 45508/99) 40 EHRR 761 relates to an adult, the underlying emphasis on the ‘essential purpose’ of Article 5 and the importance of the ‘distinctive and cumulative protections’ offered by Article 5(1)+(4), must apply in equal measure to a child.
- P v Cheshire West and Chester Council [2014] UKSC 19is binding on the Court of Appeal. The purpose of Article 5 ECHR is to ensure that people are not deprived of their liberty without proper safeguards. The Court of Appeal considered that Cheshire West was “determinative of the issue in this appeal”.
- 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 Article 5, thereby avoiding the important protection, safeguards and independent authorisation by a court that would otherwise be required.
The Court of Appeal stated that Lieven J’s error was to focus on whether a local authority may provide “valid consent’ in order to avoid engaging limb (ii) of Storck”. The focus ought to have been on the overarching purpose of Article 5 ECHR. Irrespective of the domestic law relating to parental responsibility, the State can never give valid consent in these circumstances.
Comment
The effect of Lieven J’s decision was that a local authority would be “judge, jury, and executioner” in respect of the confinement of a child. It cannot be right in law that the local authority’s decision on any deprivation of liberty is unchecked – and the Court of Appeal held that it was not.
Whilst there is case law on whether restrictions amount to a deprivation of liberty, as opposed to a legitimate exercise of parental responsibility, for the purposes of the acid test set out in Cheshire West, this should be distinguished from whether Article 5 ECHR is engaged pursuant to Storck. As has been made clear, Lieven J’s decision fails to consider the overarching purpose of Article 5 ECHR.
It is also important to note that the court must consider not only the placement but also the restrictions in place and sought to be authorised by the court.
Anogika Souresh is a barrister at 1 Crown Office Row, Brighton
