A case concerning whether a Local Authority can consent to the confinement of a child in its care, such that there is no requirement for a deprivation of liberty order from the court.
Yesterday, the Court of Appeal handed down judgment in the case of J v Bath and North East Somerset Council & Ors [2025] EWCA Civ 478, an appeal against the decision of Mrs Justice Lieven. Sophie Smith-Holland represented the child’s mother alongside Victoria Butler-Cole KC of 39 Essex Chambers and Sophie Webb at RWK Goodman. The appeal was brought on behalf of the child, and was supported by the mother and all of the other parties.
Article 39 / MIND, The Children’s Commissioner and The Secretary of State for Education all intervened because of the importance and far-reaching consequences of the first instance decision. You can read about the first instance decision here.
The leading decision was given by the President of The Family Division, Sir Andrew McFarlane and confirms the following:
- A child must be afforded the benefit of the checks and safeguarding under Article 5(1) or access to a process in court under Article 5(4). If the Local Authority could consent to the confinement by the State of a child in their care, it would remove the case from Article 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 United Kingdom (Application: 45508/99) 40 EHRR 761 and Cheshire West [2014] UKSC 19 make plan that it is simply not open to the State, though the local authority, to avoid the constraints of Article 5
- Lieven J’s decision in this case, and her decision in Lincolnshire County Council v TGA (Deprivation of Liberty: Parental Consent) [2022] EWHC 2333 (Fam), were in error. The error 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 on the overarching purpose of Article 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.
Lady Justice King and Lord Justice Singh added the following important points:
- ‘Put simply, 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.’
- ‘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.’
The Court of Appeal did not deal with the question of whether a parent with parental responsibility for a child under the age of 16 can or cannot consent to the confinement of their child, as it was not an issue that rose in the appeal.
Sophie is also regularly instructed in Deprivation of Liberty cases in the High Court. Read more here.