NATIONAL DEPRIVATION OF LIBERTY LIST
Royal Courts of Justice
Strand
London
WC2A 2LL
Before :
MS JUSTICE HENKE
Between :
East Riding of Yorkshire Council | Applicant |
- and - | |
(1) The Mother (2) The Father (3) L (A child) (via their Children’s Guardian) | Respondents |
Brett Davies instructed by and for the Applicant
The First and Second Respondents appearing as Litigants in Person
Jacqui Thomas KC leading Jess Harrison (instructed by Burstalls Solicitors) for the Third Respondent
Hearing date: 12 December 2025
Approved Judgment
This judgment was handed down remotely at 10:30am on 2 February 2026 by circulation to the parties or their representatives by e-mail and release to the National Archives.
.............................
MS JUSTICE HENKE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
Introduction
The application before me was issued on 8 October 2025. The Applicant is East Riding of Yorkshire Council (“the local authority”). The First and Second Respondents are the child’s mother and father. They are the parents of L, who, at the moment, prefers to be known as S. Both of L’s parents have parental responsibility for her.
L was born on 6 December 2013. She is now 12 years old. L is a much-loved child. Her parents have accepted care and support from the local authority to ensure her complex needs are met. L’s parents consent to her voluntary accommodation under s.20 of the Children Act 1989. In addition, they have specifically consented to L’s liberty being restricted. They, and all other parties, agree that those restrictions are in her best interests. The issue I am asked to decide is whether it is lawful, or not, for the local authority to rely on L’s parents’ consent to the ongoing arrangement for care and support for L where, as here, it is accepted that those arrangements amount to a confinement within the meaning of limb a of Storck.
Factual Background
L has autism with significant sensory processing needs. Demand-avoidant behaviours are a feature of her autism. L can display a high level of emotional dysregulation, aggression, and violence when her fixed views are not acted upon. It is accepted that L’s parents did all they could to meet her needs at home. However, on 13 February 2025 L’s parents made the decision that L’s needs were best met by her being placed in accommodation provided by the local authority. On 7 April 2025 L was placed at Pink Paradise School under s.20 CA 1989. There, L received 2:1 supervision and sometimes required physical restraint to keep her and others safe. Over the summer of 2025, L’s presentation deteriorated and she refused to leave her bed. There was an Ofsted visit to the school on 1 October 2025. Concerns were raised that her needs were not being met and the school was rated inadequate. The local authority wished therefore to move L to Rainbow Cottage and applied to the court by C66 application for an order within the inherent jurisdiction authorising the local authority to transport L to Rainbow Cottage and authorising the deprivation of her liberty once at Rainbow Cottage.
The application came before HHJ Wildblood KC sitting in the National Deprivation of Liberty List on 8 October 2025. He permitted the local authority to invoke the inherent jurisdiction under s.100 CA 1989, adjourned the application until 4 November 2025, and in the meanwhile made the following declarations:
It is lawful and in the best interest of L that the local authority, the East Riding of Yorkshire Council is permitted to deprive L of her liberty by way of conveying her to Rainbow Cottage by secure ambulance, including by way of physical restraint by trained staff to ensure L’s safety in order to (1) ensure that she enters the ambulance for the purposes of conveying her to Rainbow Cottage; (2) once in the ambulance, does not seek to leave whilst in transport, or cause damage or harm during the course of the conveyance; and (3) ensuring she is received into safe care at Rainbow Cottage. The secure ambulance will be provided V Care 24.
The deprivation of liberty sought by the local authority and permitted by the court is necessary to avoid breaching L’s human rights and is the restrictive and most proportionate response to the risk of harm which arises. These provisions in place for L are necessary, the least restrictive and a proportionate response to the risk of harm which arise.
In depriving L of her liberty, the local authority is directed to use the minimum degree of force or restraint required only in circumstances that these are necessary. The use of such force/restraint is lawful and in his best interests provided always that the measures are:
The least restrictive of L’s rights and freedoms
Proportionate to the anticipated harm;
The least required to ensure L’s safety and that of others;
Respectful of L’s dignity.
On 4 November 2025, the application came before HHJ Wildblood KC again. He adjourned the application to 12 December 2025 for me to determine “the issue of whether it is lawful, or not, for ERYC to rely on consent given by L’s mother for the ongoing arrangements for the care and support of L in circumstances where such arrangements amount to an objective deprivation of liberty”.
By the time the application came before me, L had moved to Rainbow Cottage. Rainbow Cottage is a solo Ofsted-registered children’s home offering 2:1 staffing. The Cottage is located in close proximity to L’s parents’ home and will enable L to have more frequent and meaningful contact with her family. Her parents see her separately so as not to overwhelm her. They each see her once a week.
Whilst placed in Rainbow Cottage L is also supported by the NHS Neurodiversity Service and has an allocated Learning Disability Nurse and will be supported by a psychiatrist.
The local authority tells me that since her move to Rainbow Cottage, L’s behaviours and presentation have improved. Her mood is variable but largely settled when routines are predictable and adult demands are low. However. she has displayed heightened sensitivity, tearfulness and amplified “why/what else”questioning, plus several bed-wetting incidents and complaints of tummy aches. There are episodes when L becomes physically immobile. She describes herself as getting stuck. The placement has been implementing planned ignorance, meaning L is generally left until she moves independently, unless there is a clear risk of harm. However, there have been occasions where intervention has been necessary because L could not be safely left. Examples include: remaining in a bath for over an hour after it had gone cold on 19th November 2025; requiring physical assistance to prevent hypothermia; refusing to leave the dining room after urinating on the floor and engaging in unsafe behaviours on 14th November 2025; and being unable to transition from the Children’s Centre on 21st November 2025, remaining in a public area for 45 minutes despite multiple de-escalation strategies. In each case, the evidence is that the physical intervention was used in a proportionate, time limited manner, and carried out with dignity measures to ensure L was not at risk of harm. The physical intervention was a hold using Team Teach (linking arms) to support L away from hazards and to get her ‘unstuck’ again.
L’s dysregulation primarily presents as crying (pretend and genuine), loud or deep shouting, fixated looping on names, food or drink pouring, withholding or controlling items, extended bathroom sessions and occasional physical behaviours such as pulling hair and breaking staffs belonging. Triggers include transitions, content restrictions (iPad pause/charging, internet off, mealtime rules), identity or name changes, new staff introductions, departures, and body-care routines (bathing/menstrual care). Effective strategies logged by staff include, planned to ignore followed by supportive re-engagement, humour and friendly but firm boundaries, timers and clear now/next, low demand with graded prompts, change of face, offering choices/compromises and safety-led intervention when risk is present.
L’s preferred activities centre on her iPad. She requests intermittent staff companionship when on her iPad. In relation to her education, L’s participation with her tutor is inconsistent. Some days she will participate in education but on others she will not. She has regular family time with her parents.
The restrictions currently in place at Rainbow Cottage that are accepted as impacting her liberty are described as follows:
Continuous supervision on a 2:1 basis always in the home and the community day and night. She is never left alone without staff nearby, even when she requests space. Staff may prop her door open and maintain visual checks to ensure safety.
Use of Team Teach behaviour support (physical intervention) when necessary and in line with approved techniques by appropriately trained staff in the following circumstances:
To prevent L causing harm to herself and others. For example, when L is stuck and unable to move, intervention is required to help her from this disabling element of her needs.
To prevent L leaving the placement of her own accord to keep him safe and for the purposes of transport to and from the placement and educational provisions/appointments.
To return L to the placement if she absconds.
Restricted movement within the home:
The outside gate (operated with a fob) to be locked at all times.
The external doors to be locked unless L is outside with staff or entering/leaving the building.
The locking of the door from the dining room to the kitchen while staff are cooking and preparing food to avoid L hurting or scalding herself.
The restrictions which are in place and which the local authority say are related to her care are as follows:
Use of Team Teach behaviour support (physical intervention) when necessary and in line with approved techniques (Team Teach) by appropriately trained staff in the following circumstances. L at times requires physical restraint to remove her from situations that may cause her physical harm.
Assistance with bathing and dressing when refusal to do this herself. An example on 13th October 2025, L smeared her faeces head to toe and refused to get cleaned. L was then supported by the staff to clean due to the excessive amount of faeces and the health implications of this.
L may refuse to change soiled clothing or engage in hygiene routines. Staff are authorised to intervene physically if her skin integrity or health is at risk, including strip washing and changing her clothing when she is unable or unwilling to do so herself.
Although physical intervention is used as a last resort, it is said to be needed at times to maintain L’s safety. An example given when restraint was used is 14 November 2025. At the end of a tutoring session, L refused prompts to go upstairs for personal care and instead urinated at the dining table. When staff explained that accidents happen and encouraged her to clean up, L refused and began kicking urine across the floor. She verbalised that she wanted to “make a bad choice” and repeatedly stated she had wet herself intentionally because she was “cross” that the tutor had left. L then removed her bottom clothing and engaged in inappropriate behaviour, including inserting her fingers in her vagina whilst maintaining eye contact with staff. Despite multiple strategies, planned ignorance, reassurance, preferred choices, and rule reminders, L remained fixated on resisting movement and continued shouting for approximately 40 minutes. Staff attempted several de-escalation techniques, including countdown timers, distraction, and offering options, but L appeared “stuck in transition,” unable to physically move despite expressing a desire to do so. Ultimately, a restrictive intervention was required. Using a two-person single elbow hold, staff guided L upstairs while maintaining her dignity with a towel. L initially dropped her weight during the transition, requiring staff to release and reapply guidance. Once upstairs, L accepted support, completed her wash independently, dressed in clean clothes, and took her medication without issue.
It is accepted before me that L is not Gillick competent to consent to the restrictions or interventions in her care. Due to L’s autism, cognitive rigidity, and anxiety-driven behaviours, she does not have the capacity to fully comprehend the nature, purpose, and consequences of the interventions used to keep her safe. Her decision-making is significantly influenced by sensory sensitivities and emotional dysregulation, meaning she cannot reliably make informed choices about matters such as physical intervention, environmental restrictions, or medication.
The unchallenged statement of L’s parents states:
We wish to confirm that we both have regular involvement in L’s care, including frequent discussions with the staff at Rainbow Cottage and a positive, collaborative working relationship with all members of L’s care team and the professionals involved in her support.
Given this ongoing involvement, we consider that we are providing informed consent, under our parental responsibility, to the restrictions currently in place for L at Rainbow Cottage. These restrictions are consistent with those that were in place while L was living at home, and therefore we do not believe it is necessary for the court to make an order.
However, should the court determine that an order is required, we will fully support whatever decision is made in L’s best interests.
In a note of a meeting I have between L’s parents and Counsel for the local authority, L’s mother stated that whilst L’s needs are over and above anything the family can provide, L is still their daughter and they, her parents, want to make decisions for her. They will only consent when they consider that to do so is necessary and in their daughter’s best interests.
L’s mother and father have after consideration signed a document in which they specifically authorise the restrictions to keep their daughter safe at Rainbow Cottage. The document includes a clause that the restrictions will be reviewed every six months as a minimum. The document is dated 11 December 2025.
The Relevant Law
Under the European Convention on Human Rights, Article 5(1) states that:
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 – […]
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;
the lawful detention of persons […] of unsound mind […]”
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:
the objective component of confinement in a particular restricted place for a not negligible length of time;
the subjective component of lack of valid consent; and
the attribution of responsibility to the State.
In P v Cheshire West [2014] UKSC 19(hereafter “Cheshire West”) it was held by the majority (3:2) that the test for deprivation of liberty (Stork limb (a)) was whether the person concerned was under continuous supervision and control and was not free to leave. The person’s compliance or lack of objection was not relevant; the relative normality of placement was not relevant; and the reason or purpose behind a particular placement was also not relevant. What it meant to be deprived of liberty had to be the same for everyone, whether or not they had physical or mental disabilities. As it would be a deprivation of a non-disabled person’s liberty to be obliged to live in a particular place, subject to constant monitoring and control, and only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, so also it would be a deprivation of the liberty of a disabled person. The fact that the living arrangements were comfortable and made the person’s life as enjoyable as it could possibly be, should make no difference.
In Re D (A Child) [2019] UKSC 42, at para 43, Lady Hale summarised limb (c) as:
Not only was the State actively involved in making and funding the arrangements, it had assumed statutory responsibilities – albeit not parental responsibility – towards D by accommodating him under section 20 of the Children Act 1989, thereby making him a ‘looked after child’. Even without all this, it is clear that the first sentence of article 5 imposes a positive obligation on the State to protect a person from interferences with liberty carried out by private persons, at least if it knew or ought to have known of this.
Most recently, in J v Bath and North East Somerset Council & Ors [2025] EWCA
Civ 478, the court was concerned with J who had been made the subject of a final care
Order and concluded that the local authority cannot give ‘valid consent’ to the confinement of a child. At para 57, King LJ stated:
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 Stock requires there to be valid consent to that confinement. It is as Ms Roper submitted (see [35] above), 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.
Having set out briefly the law in relation to limbs (a) and (c) of Storck, I now turn to consider limb (b) in the context of a child, as here, who is under 16 years of age. I begin by reminding myself that Lord Kerr in Cheshire Westat paragraph 81 helpfully considered what could amount to valid consent, limb (b) of Storck:
The subjective element in deprivation of liberty is the absence of valid consent to the confinement in question […] This must be distinguished from passive acquiescence to the deprivation, particularly where that stems from an inability to appreciate the fact that one’s liberty is being curtailed.
In Gillick v West Norfolk and Wisbeach Area Health Authority [1985] UKHL 7, it was held in the context of consent to medical treatment that when determining whether the child themselves can consent, consideration should be given to their ability to:
Understand the nature and implications of the decision and the process of implementing that decision;
Understand the implications of not pursuing the decision;
Retain the information long enough for the decision-making process to take
place;
Be of sufficient intelligence and maturity to weigh up the information or arrive
at a decision;
Be able to communicate that decision.
Several authorities have considered whether a child’s parent can give valid consent to a child’s deprivation of libertyfor the purposes of limb (b) ofStorck.
In Re D [2015] EWHC 922 (Fam)before Mr Justice Keehan,it was ultimately accepted by the parties that the circumstances in which D was accommodated amounted to a deprivation of liberty subject to the issue of consent to the placement. D, like L, could not consent and thus the essential issue for Mr Justice Keehan was whether D’s parents could, in the proper exercise of parental responsibility, consent to his accommodation by the State, in that case Hospital B, and thus render what would otherwise be a deprivation of liberty not a deprivation of liberty (i.e. limb (b) of Storck was not met) - see paragraph 46.
At paragraphs 55- 58 of his judgment, Mr Justice Keehan stated this:
When considering the exercise of parental responsibility in this case and whether a decision falls within the zone of parental responsibility, it is inevitable and necessary that I take into account D’s autism and his other diagnosed conditions. I do so because they are important and fundamental factors to take into account when considering his maturity and his ability to make decisions about his day to day life.
An appropriate exercise of parental responsibility in respect of a 5 year old child will differ very considerably from what is or is not an appropriate exercise of parental responsibility in respect of a 15-year-old young person.
The decisions which might be said to come within the zone of parental responsibility for a 15-year-old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15-year-old son suffers with D’s disabilities. Thus a decision to keep such a 15-year-old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15-year-old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.
The parents of this young man are making decisions, of which he is incapable, in the welfare best interests of their son. It is necessary for them to do so to protect him and to provide him with the help and support he needs.
In Re D (A Child) [2019] UKSC 42the Supreme Court considered the issue of whether a parent could consent to the confinement of a 16- or 17-year-old young person. Ultimately the court concluded that it was not within the scope of the parental responsibility of D’s parents to consent to a placement which deprived D of his liberty. The court recognised this was the conclusion notwithstanding that D’s placement was in his best interests and his parents had throughout acted with his best interests at the forefront. The court held that allowing parental consent to be used to prevent a deprivation of liberty arising would likely strip a young person of the safeguards afforded to anyone living in circumstances which amount to their deprivation of liberty by Article 5 ECHR and may risk them being placed in a more vulnerable position.
Given the issues in the case before me, I have reminded myself of the first three paragraphs of Lady Hale’s judgment:
The common law has long protected the liberty of the subject, through the machinery of habeas corpus and the tort of false imprisonment. Likewise, article 5 of the European Convention on Human Rights begins: “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”. Storck v Germany(2005) 43 EHRR 6, paras 74 and 89, confirmed by the Grand Chamber in Stanev v Bulgaria (2012) 55 EHRR 22, paras 117 and 120, and adopted by this court in Surrey County Council v P; Cheshire West and Chester Council v P [2014] UKSC 19; [2014] AC 896 (commonly known as Cheshire West), para 37, the European Court of Human Rights held that there were three components in a deprivation of liberty for the purpose of article 5: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the State.
At the same time, the common law and equity have long recognised the authority of parents over their minor children, now encapsulated in the concept of “parental responsibility” in the Children Act 1989. Likewise, article 8 of the European Convention on Human Rights begins “Everyone has the right to respect for his private and family life, his home and his correspondence”; and, as this court recognised in Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29, paras 71 to 74, the responsibility of parents to bring up their children as they see fit, within limits, is an essential part of respect for family life in a western democracy.
This case is about the interplay between the liberty of the subject and the responsibilities of parents, between the rights and values protected by article 5 and the rights and values protected by article 8, and between the relationship of parent and child at common law and the Convention rights. The principal issue can be simply stated: is it within the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of article 5? But this principal issue cannot sensibly be addressed without also considering further issues. What difference, if any, does it make that the child lacks the mental capacity to make the decision for himself? What difference, if any, does it make that the holder of parental responsibility is a public authority rather than an individual? Furthermore, although the concentration in this case is upon 16 and 17-year-old children, similar issues would arise in a case concerning a child under 16.(my emphasis).
Later at paragraph 42 of her judgment, in the context of a young person over 16, Lady Hale stated this:
It follows that a mentally disabled child who is subject to a level of control beyond that which is normal for a child of his age has been confined within the meaning of article 5. Limb (a) of the three Storck criteria for a deprivation of liberty (see para 1 above) has been met. There was, however, an argument that the consent of D’s parents supplied a substitute for the consent of the person confined, so that limb (b) was not met. It suited counsel in Cheshire West (as recorded in the last sentence of para 41) to argue that Nielsen should be regarded as a case of substituted consent, because no person has the right to give such consent on behalf of a mentally incapacitated adult. But, as also pointed out in Cheshire West, it is striking that the European Court of Human Rights has consistently held that limb (b) can be satisfied despite the consent of a person with the legal right to make decisions on behalf of the person concerned: see Stanev v Bulgaria (2012) 55 EHRR 696, DD v Lithuania [2012] MHLR 209, Kedzior v Poland [2013] MHLR 115, Mihailovs v Latvia, unreported, and now Stankov v Bulgaria [2015] 42 ECtHR 276. In Stanev, the court did observe, in passing, that “there are situations where the wishes of a person with impaired mental facilities may be validly replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned” (para 130). However, as Keehan J observed in the Court of Protection (para 118) that is very far from adopting a general principle of substituted consent. The consent of a legal guardian may have been sufficient to make the confinement lawful in the domestic law of the country concerned, but that did not prevent its being a deprivation of liberty, or guarantee that it fulfilled the Convention requirement of legality. In the cases where limb (b) has been held to be satisfied, it is because the evidence showed that the person concerned was willing to stay where he or she was and was capable of expressing that view. Parental consent, therefore, cannot substitute for the subjective element in limb (b) of Storck. (my emphasis underlined)
Finally, at the conclusion of her judgment Lady Hale at paragraphs 47-50 stated this
There are two contexts in which a parent might attempt to use parental responsibility in this way. One is where the parent is the detainer or uses some other private person to detain the child. However, in both Nielsen and Storck it was recognised that the state has a positive obligation to protect individuals from being deprived of their liberty by private persons, which would be engaged in such circumstances.
The other context is that a parent might seek to authorise the state to do the detaining. But it would be a startling proposition that it lies within the scope of parental responsibility for a parent to license the state to violate the most fundamental human rights of a child: a parent could not, for example, authorise the state to inflict what would otherwise be torture or inhuman or degrading treatment or punishment upon his child. Likewise, section 25 of the Children Act 1989 recognises that a parent cannot authorise the State to deprive a child of his liberty by placing him in secure accommodation. While this proposition may not hold good for all the Convention rights, in particular the qualified rights which may be restricted in certain circumstances, it must hold good for the most fundamental rights - to life, to be free from torture or ill-treatment, and to liberty. In any event, the state could not do that which it is under a positive obligation to prevent others from doing.
In conclusion, therefore, it was not within the scope of parental responsibility for D’s parents to consent to a placement which deprived him of his liberty. Although there is no doubt that they, and indeed everyone else involved, had D’s best interests at heart, we cannot ignore the possibility, nay even the probability, that this will not always be the case. That is why there are safeguards required by article 5. Without such safeguards, there is no way of ensuring that those with parental responsibility exercise it in the best interests of the child, as the Secretaries of State acknowledge that they must. In this case, D enjoyed the safeguard of the proceedings in the Court of Protection. In future, the deprivation of liberty safeguards contained in the Mental Capacity Act 2005 (as amended by the Mental Capacity (Amendment) Act 2019) will apply to children of 16 and 17. I would therefore allow this appeal and invite the parties’ submissions on how best to incorporate this conclusion in a declaration.
Logically, this conclusion would also apply to a younger child whose liberty was restricted to an extent which was not normal for a child of his age, but that question does not arise in this case. The common law may draw a sharp distinction, in relation to the deprivation of liberty, between those who have reached the age of 16 and those who have not, but the extent to which that affects the analysis under the Human Rights Act is not clear to me and we have heard no argument upon it. I therefore prefer to express no view upon the question. Nor would I express any view on the extent of parental responsibility in relation to other matters, such as serious and irreversible medical treatment, which do not entail a deprivation of liberty. Some reference to this was made in the course of argument, but it does not arise in this case, which is solely concerned with depriving 16 and 17-year-olds of their liberty. It follows that I agree with what Lady Black says about those last two points in para 90 of her judgment. (my emphasis).
That brings me to consider what Lady Black said in Re D (A Child) [2019] UKSC (above). At paragraph 69-71 she states this:
I will look in more detail at Gillick below, but it may help to preface this examination by explaining that I do not share the President’s confidence that the Gillick test extends to the aspect of parental responsibility with which the present case is concerned. The issue in Gillick was different in at least two important ways. First, it was not about restricting the physical liberty of the child, but concerned decision making in the sphere of medical treatment. Secondly, the question was whether the parent could lose his or her exclusive decision-making powers before the child reached the age of 16, if the child was capable of making his or her own decision, not whether the parent was entitled to continue to make decisions after the child reached 16, if the child was not capable.
As to the first of these differences, the considerations in relation to decisions about physical liberty are not the same as those involved in other spheres where parental responsibility may operate. In particular, article 5 of the European Convention on Human Rights was not material in the Gillick decision, but is of central importance to the present case, as can be seen from Lady Hale’s judgment. Moreover, it is not only in the Convention, and the cases decided by the European Court of Human Rights, that one can find special attention being given to liberty, whether of a child or a vulnerable adult. It is evident in the older habeas corpus authorities to which I have referred. And it has been firmly engrained in domestic law in certain statutes, notably in the Children Act 1989 in the secure accommodation provisions, with which I deal later in this judgment, and in the Mental Capacity Act 2005 which, by section 4A, marks out “deprivation of liberty” for special treatment, with more attendant safeguards than other acts performed in relation to a person who lacks capacity.
Turning to the second of the differences, it has a number of components, one of which is the pivotal age of 16. Although not determinative of the question before us, I think it is far from irrelevant that, as Lady Hale puts it at para 27 (after listing various statutory provisions in her para 26), the law accords to children who have reached the age of 16 years a status which is in some respects different from children below that age. Of the provisions listed, I would single out section 2(5) of the Mental Capacity Act 2005 (para 26(iii) of Lady Hale’s judgment). I cannot accept the Official Solicitor’s case that the 2005 Act constitutes a complete decision-making framework for the care and treatment of those aged 16 and above who lack capacity, not least because there is an obvious overlap between the reach of the Children Act 1989 and that of the 2005 Act, and I can find nothing in the 2005 Act that could be said to indicate a general rule to the effect that, where it applies, it does so to the exclusion of other common law and statutory provisions. However, it does seems to me that the deliberate choice of the legislature to include children of 16 to 18 years within the scope of the 2005 Act, and now (by virtue of the recent amendment to the Act, see para 49 of Lady Hale’s judgment) to extend a regime of administrative deprivation of liberty safeguards to them, indicates an appreciation of the different needs of this particular age group.
At paragraph 88-90 of her judgment Lady Black returns to the case of Gillick and the zone of parental responsibility and states:
As I have explained (see above at para 69 et seq), I do not share the President’s confidence that the Gillick test extends to the aspect of parental responsibility with which the present case is concerned, or that the Gillick decision can, without more, be treated as regulating the situation where the objective is not to contract the boundaries of parental responsibility, but to extend them. In my view, as I said above, it is of real significance that in Gillick, the House of Lords were dealing with a materially different issue. The respondent recognises that the focus of Gillick was specific to the issue of consent to medical treatment of children under 16, but invites this court to conclude that the test laid down there applies beyond that scope and up to the age of majority. I accept that certain things that were said in Gillick were capable of being interpreted as applying to a situation such as the present, but it would not, in my view, be appropriate to interpret them in that way, so as to draw into the Gillick net a situation which is diametrically opposed to that with which the House was concerned (not the tempering of parental responsibility in relation to the under 16 age group, but its expansion in relation to those aged 16 and 17 so as to give it a role which would not otherwise be afforded by the common law). My unwillingness to adopt this interpretation is reinforced by what I perceive to be the distinct, and rather special, features of the field of deprivation of liberty with which we are here concerned. It follows that the rights of a parent in relation to restricting the liberty of a child remain, at common law, as described in Hewer v Bryant. The inescapable result of that is, I think, that it is not within the scope of parental responsibility for parents to give authority for their 16 year old child to be confined in a way which would, absent consent, amount to a deprivation of liberty. In so saying, I do not intend in any way to water down the important changes brought about by Gillick or to alter the way in which it has been applied in many spheres of family law. I have only been concerned to consider its application in the very specific context of confinement of children of the ages of 16 to 18.
The position in relation to the confinement of children who are under 16 might be different for a variety of reasons. It could be argued, for example, that the Gillick decision is more readily applicable to under 16s than to over 16s, given that this was the age group with which the House was concerned. It would then be arguable that the position in relation to that group was as the President set out at para 85 of his judgment (quoted above) ie that the parental ability to restrict a child’s liberty continues to be as described by Sachs LJ in Hewer v Bryant, but with a Gillick test rather than the previous fixed ages. But the effect of this, applied to a child who lacked capacity, would not be to leave a gap in the parent’s powers to cater for the particular needs of a child with disability. On the contrary, the child not having attained Gillick capacity, there would be nothing to bring to an end the parent’s common law power to confine the child as required in the child’s interests. To put it in the terms used in this appeal, it would remain within the ambit or zone of the parent’s parental responsibility. However, there would, no doubt, be other arguments to be aired on the point, and I have not formed even a preliminary view about it. (my emphasis)
In summary, therefore, I would hold that as a matter of common law, parental responsibility for a child of 16 or 17 years of age does not extend to authorising the confinement of a child in circumstances which would otherwise amount to a deprivation of liberty. For me, this reinforces the conclusion to which Lady Hale has come by the route she sets out in paras 42 to 49 of her judgment. She concludes, in para 50, by saying that logically her conclusion would also apply for a younger child, but I would prefer to leave this separate question entirely open, to be decided in a case where it arises.
However, Re D [2019] concerned children over 16. Although Lady Hale and Lady Black commented on the position of children under the age of 16, they did not determine the issue. Accordingly, Mr Justice Keehan’s decision in Re D [2015] (above) still stands.
As far as I am aware, the first reported High Court case to consider limb (b) ofStorck after Re D [2019] wasMrs Justice Knowles in Re Z (a child: deprivation of Liberty: Transition Plan) [2020] EWHC 3038.Within her judgment, Mrs Justice Knowlesconsidered the relevant legal framework and said this at paragraphs 27:
Parents can, pursuant to the exercise of their parental responsibility, permit or authorise the use of reasonable force on a child particularly if the child will suffer immediate and significant harm by them not so acting: see A Metropolitan Borough Council v DB [1997] 1 FLR 767 per Cazalet J at 777:
“The local authority, which also has parental authority under the care order, is empowered, like the mother, to take such steps as may be appropriate to protect the best interests of the child; that in my view can permit the use of reasonable force for the purpose of imposing intrusive necessary medical treatment on her where a life-threatening situation arises or where a serious deterioration to health may occur if appropriate treatment is not administered”
In this jurisdiction, I note the ambit of parental responsibility to delegate reasonable and measured chastisement of one’s child is long-standing in the common law: see R v Hopley [1860] EW Misc J73; (1860) 2 F&F 202; 175 ER 1024.
Later at paragraphs 33- 34, Mrs Justice Knowles stated that:
The subjective test is met if there is an absence of valid consent to the arrangements which satisfy the objective test. It is not always permissible to rely on consent of parents in order to show that the subjective test is met. In Re D (A Child) [2019] UKSC 42, the Supreme Court considered whether it was in the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of Article 5. The Supreme Court, by a majority of 3 to 2 (Lord Carnwath and Lord Lloyd-Jones dissenting) determined it was not within the scope of parental responsibility for a parent to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty. With respect to a child under the age of 16, Lady Hale at [50] said that, logically, the conclusion would also apply to any younger child whose liberty was restricted to an extent which was not normal for a child of his age but that question did not arise in Re D.
Furthermore, the reasoning of Mr Justice Keehan, the judge at first instance in Birmingham City Council v D (by his litigation friend, the Official Solicitor) [2016] EWCOP 8, as to the exercise of parental responsibility for those aged under 16, has not been questioned in the Supreme Court. Lord Carnwath noted that Lady Hale did not suggest that there was anything in the Strasbourg jurisprudence which would invalidate that aspect of Keehan J’s judgment and concluded “… For the time being his reasoning remains the law, and as such appears to fit well with the new legislative scheme” [159].
Applying that legal framework at paragraphs 38-41 and 46 Mrs Justice Knowles considered on the facts of the case before her that:
Coupled with the parents’ consent, the following statutory schemes addressed the authorisation of any measures and detention of Z at his school placement. First, section 20 of the CA authorised the placement at school and provided Z with the legal status and ensuing protections of a looked after child. Second, section 93 of the Education and Inspections Act 2006, together with the Guidance entitled “Positive and Proactive Care: Reducing the need for restrictive interventions”, Department of Health 2014 and “Use of reasonable force - Advice for headteachers, staff and governing bodies”, Department for Education, July 2013, and section 550A of the Education Act 1996 provided, in combination, for staff at a school to use reasonable force in relation to a pupil for the purpose of preventing him committing an offence, causing personal injury (including to himself) or damage to property and engaging in any behaviour prejudicial to the maintenance of good order and discipline. Third, as Z was aged under 16 years and in accordance with the decision of the Supreme Court in Re D, the parents could lawfully consent to Z being deprived of his liberty as long as this was an appropriate exercise of parental responsibility.
Pausing there, I recognise that some of the more extreme circumstances that may arise in specialist schools for children with significant behavioural problems could fall outside of the boundaries of parental responsibility, whether delegated or not. Much will depend on the age of the child, the nature of the intervention and the potential for injury to a child or other person. Moreover, the Act contemplates the maintenance of good order or discipline of the school so the measures carried out by a trained behaviour management professional for one purpose may not be objectively reasonable if carried out by a parent for another purpose. There are limits to what a parent can reasonably authorise.
This case turned on the fact that the plan to move Z from his home required the authorisation of the use of force in respect to him. On being told that he had to go to a 52-week residential school, Z said he would lock himself away or defend himself. His parents believed that Z was determined to resist any move out of his home and, in those circumstances and given the history, Z’s safety and the safety of everyone involved demanded a short and effective process which led seamlessly through the levels of intervention until Z was safely inside the car taking him to his new school.
I accepted the submissions of all the parties that what was contemplated here strained the boundaries of what was permitted by a parent with respect to the exercise of their parental responsibility. There was no immediacy of significant harm in this case as would be recognised by necessity. However, it was anticipated that Z would resist and that the level of restraint or force required to move him safely into the car would be outside that which might be considered reasonable chastisement of a child.
[…]
Turning to the transition plan, it was carefully graduated, and Z would be given every opportunity to go to the placement under his own steam. The restraints contemplated on day five of the plan meant that Z would be confined in a vehicle frame for a not negligible length of time and would be under the continuous supervision of carers. In blunt terms, he would not be free to leave the vehicle. If matters escalated to the worst factual scenario – the determined refusal by Z to leave the parental home -, then the circumstances of Z’s removal from home into the secure vehicle and the conveyance against his will for a period of two hours followed by removal from the vehicle into the school represented a continuum of force and restraint when he was outside the care of his parents. The measures contemplated appeared to be at, if not beyond, the limits of what a parent could consent to within the proper exercise of their parental responsibility. Moreover, if the worst-case scenario were reached, the components of the detention that involved force were indivisible from the restraint in a confined place (a secure vehicle with persons and locks to prevent Z leaving that vehicle) so as to render the parents’ or the child’s own consent (even if competent) beyond the scope of what they could lawfully agree.
I was satisfied that, in relation to the objective test of confinement, the plan satisfied that criterion.
With respect to the subjective test, I was also satisfied that, for the reasons outlined above, it was neither permissible to rely on Z’s consent nor that of his parents. Finally, the deprivation of liberty arising out of the transition plan would be attributable to the state given that the local authority would be responsible for the arrangements.
In Lincolnshire CC V TGA and others [2022] EWGC 2323 Mrs Justice Lieven considered the issue in the context of a child under 16 who lacks Gillick competence where there was no dispute over whether such deprivation was in the child’s best interests. Mrs Justice Lieven decided that none of the previous domestic cases was binding on the instant court in respect of the role of parental consent for a child under the age of 16. On the other hand, the European Court of Human Rights had found deprivation of liberty as falling within the scope of parental responsibility: see Nielsen v Denmark Application No 10929/84) [1988] ECHR 2.The power of parents to exercise custody over their children, or in modern parlance, to deprive children of their liberty, had long been accepted by the common law. That power in respect of a child under the age of 16 had not been removed by statute. It was, however, critical to have in mind that the exercise of any parental rights in respect of a child had to be for the benefit of the child. If the parent were exercising parental rights, including consenting to the deprivation of liberty, in a way which was said to be contrary to the child’s best interests then such a decision would no longer fall within the zone of parental responsibility.
At paragraphs 47 ff Mrs Justice Lieven, having reviewed all the authorities, concluded as follows:
[47] The conclusion I have reached is that a parent can consent to a deprivation of liberty within Storck component (b) for a child under 16, who lacks Gillick competence where there is no dispute that such a deprivation is in the child’s best interests. As I have explained above, none of the previous domestic cases are binding upon me in respect of the role of parental consent for under 16 year olds. On the other hand, Nielsen expressly dealt with the point and the ECHR found the deprivation of liberty in that case did fall within the parental power to deprive a child of his/her liberty.
[48] I agree with Sir James Munby P that, using the language of the subsequent case of Storck, the ECHR in Nielsen at para 73 was finding that the mother could consent to the child being deprived of his liberty in the hospital. It is possible to analyse the case as finding that the mother was able to ‘authorise’ the State, through the hospital, to deprive the child of his liberty. However, in my view, that introduces an extra and unnecessary level of complication into the analysis. It is simpler, and more in keeping with the domestic case-law, to see Nielsen as being about the child’s deprivation of liberty falling within the scope of parental responsibility.
[49] The power of parents to exercise custody over their children, or in modern parlance, to deprive children of their liberty, has long been accepted by the common law, see Hewer v Bryant. That power in respect of under 16 year olds has not been removed by statute. There can be no doubt that in respect of very young children, as Lord Kerr phrased it, they can be restrained to a point where Storck (a) is met, whether in the family setting or in school or any other setting.
[50] The contrast with the statutory position of children aged 16 and over is set out by Lady Hale in Re D (A Child) [2019] UKSC 42, [2020] 1 FLR 549,[2020] 2 All ER 399 (at para [26]). There is a host of statutory provisions which mark the legal importance of attaining the age of 16, and the legal separation that gives between a child’s rights and those of his/her parents.
[51] However, the position is different for a child under 16 years old, both in common law and under the European Convention. It follows that the very nature of ‘family life’ and therefore the protections under Art 8 for the parents’ rights, will be different for a younger child. It is, however, critical to have in mind that the exercise of any parental rights in respect of a child must be for the benefit of the child. If the parent was exercising parental rights, including consenting to the deprivation of liberty, in a way which was said to be contrary to the child’s best interests then such a decision would no longer fall within the zone of parental responsibility.
In NHS Trust v M and F and others [2024] EWHC 2207 Mr Justice Francis agreed with Mrs Justice Lieven’s analysis in TGA with one caveat which he set out in paragraph 25:
I agree with that Judgment of Lieven J, but would add this, perhaps by way of qualification: in [51] above, Lieven J said, “If the parent was exercising parental rights, including consenting to the deprivation of liberty, in a way which was said to be contrary to the child's best interests then such a decision would no longer fall within the zone of parental responsibility”. It seems to me that even a decision which was made contrary to the child’s best interests could still be a decision made in the exercise of parental responsibility. Every day parents will exercise parental responsibility and will sometimes make decisions that are contrary to their child’s best interests. This is still exercising parental responsibility. It is the duty of the State to intervene where a decision is contrary to the best interests of the child, and might cause the child to suffer significant harm […]
I need not determine the issue between Mrs Justice Lieven and Mr Justice Francis as there is no doubt that in this case L’s parents are exercising their parental responsibility in her best interests. However, if they were to act contrary to her welfare interests, then if the local authority considered the relevant thresholds met , the local authority could apply for public law orders under Part IV and V of CA 1989. I remind myself that the State is under an obligation to take appropriate steps to safeguard the lives of those within its jurisdiction – LCB v UK 1998 paragraph 36 and that States are required to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman degrading treatment or punishment, including such ill treatment as administered by private individuals – A v UK 1998.
Turning then to the issue of physical restraint, the local authority has taken me to Regulation 20 of the Children’s Homes (England) Regulations 2015. I consider that regulation 19 is also worth citing. The regulations state as follows:
(1) No measure of control or discipline which is excessive, unreasonable or contrary to paragraph (2) may be used in relation to any child.
The following measures may not be used to discipline any child—
any form of corporal punishment;
any punishment involving the consumption or deprivation of food or drink;
any restriction, other than one imposed by a court or in accordance with regulation 22 (contact and access to communications), on—
a child's contact with parents, relatives or friends;
visits to the child by the child's parents, relatives or friends;
a child's communications with any persons listed in regulation 22(1) (contact and access to communications); or
a child's access to any internet-based or telephone helpline providing counselling for children;
the use or withholding of medication, or medical or dental treatment;
the intentional deprivation of sleep;
imposing a financial penalty, other than a requirement for the payment of a reasonable sum (which may be by instalments) by way of reparation;
any intimate physical examination;
withholding any aids or equipment needed by a disabled child;
any measure involving a child imposing any measure against another child; or
any measure involving punishing a group of children for the behaviour of an individual child.
Nothing in this regulation prohibits—
the taking of any action by, or in accordance with the instructions of, a registered medical practitioner or a registered dental practitioner which is necessary to protect the health of the child; or
taking any action that is necessary to prevent injury to any person or serious damage to property.
— (1) Restraint in relation to a child is only permitted for the purpose of preventing—
injury to any person (including the child);
serious damage to the property of any person (including the child); or
a child who is accommodated in a secure children's home from absconding from the home.
Restraint in relation to a child must be necessary and proportionate.
These Regulations do not prevent a child from being deprived of liberty where that deprivation is authorised in accordance with a court order.
The Guide to the Children’s Homes Regulations DfE April 2015 includes the following:
Use of Restraint
Regulation 20 sets out the only purposes for which restraint can be used:
• preventing injury to any person (including the child who is being restrained);
• preventing serious damage to the property of any person (including the child who is being restrained); or
• preventing a child who is accommodated in a secure children's home from absconding from the home.
Injury could include physical injury or harm or psychological injury or harm.
When restraint involves the use of force, the force used must not be more than is necessary and should be applied in a way that is proportionate i.e. the minimum amount of force necessary to avert injury or serious damage to property for the shortest possible time.
Restraint that deliberately inflicts pain cannot be proportionate and should never be used on children in children’s homes.
There may be circumstances where a child can be prevented from leaving a home – for example a child who is putting themselves at risk of injury by leaving the home to carry out gang related activities, use drugs or to meet someone who is sexually exploiting them or intends to do so. Any such measure of restraint must be proportionate and in place for no longer than is necessary to manage the immediate risk.
In a restraint situation, staff should use their professional judgement, supported by their knowledge of each child’s risk assessment, an understanding of the needs of the child (as set out in their relevant plans) and an understanding of the risks the child faces. Professional judgements may need to be taken quickly, and staff training and supervision of practice should support this.
Approaches to restraint should recognise that children are continuing to develop, both physically and emotionally. Any use of restraint should be suitable for the needs of the individual child. The context in which restraint is used should also recognise that, as a result of past experiences, children will have a unique understanding of their circumstances which will affect their response to restraint by adults responsible for their care.
Practice issues
Any use of restraint carries risks. These include causing physical injury, psychological trauma or emotional disturbance. When considering whether restraint is warranted, staff in children’s homes need to take into account:
• the age and understanding of the child;
• the size of the child;
• the relevance of any disability, health problem or medication to the behaviour in question and the action that might be taken as a result;
• the relative risks of not intervening;
• the child’s previously sought views on strategies that they considered might de-escalate or calm a situation, if appropriate;
• the method of restraint which would be appropriate in the specific circumstances; and
• the impact of the restraint on the carer’s future relationship with the child.
Staff need to demonstrate that they fully understand the risks associated with any restraint technique used in the home. Techniques used for restraint that may interfere with breathing and holds by the neck that may result in injury to the spine are not permissible in any circumstances.
The Position of the Parties Before Me
I have already set out above the position of L’s parents. They wish to make the decisions for their daughter and as part of their decision making to be able to consent to elements of her plan which amount objectively to a deprivation of her liberty.
By the time the application came before me the local authority sought a declaration that there is appropriate and valid consent to the arrangements for L’s care and support from her parents, or alternatively, a deprivation of liberty order authorising such arrangements. Specifically in relation to restraint, it was argued that Rainbow Cottage is a registered care home to which the 2015 regulations apply. In L’s case restraint has been used to ensure she is not injured and thus, it is argued, is covered by the regulations. Restraint (the linking of arms) has been used when providing day-to-day care for L e.g. when she became stuck in a cold bath or to mobilise her when she had become stuck and could not leave a closing contact centre. It is argued that if I consider that the restraint used falls out with regulation 20, then it falls within the zone of parental responsibility, and her parents have provided the necessary valid consent.
On behalf of the Children’s Guardian, there is no dispute that L requires a regime of confinement to ensure her welfare needs are met. It is accepted the regime proposed by the local authority is both necessary and proportionate, and it is accepted that case law indicates that parental responsibility may be capable of being an appropriate mechanism to provide consent to the confinement of a child. It is accepted that a parent can consent to the deprivation of liberty of a non-Gillick competent child. However, the Guardian argues that there are limits on the zone of parental responsibility. In that regard I have been taken to the Mental Health Act Code for Practitioners 2015 at para 19.48:
In determining the limits of parental responsibility, decision-makers must carefully consider and balance: (i) the child’s right to liberty under article 5, which should be informed by article 37 of the UNCRC; (ii) the parents’ right to respect for the right to family life under Article 8, which includes the concept of parental responsibility for the care and custody of minor children; and (iii) the child’s right to autonomy which is also protected under Article 8.
It is argued that within Nielson v Denmark, paras 61 and 72, the court recognised: “the care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose or authorise others to impose, various restrictions on the child’s liberty’…’the rights of the holder of parental authority cannot be unlimited and that it is incumbent on the state to provide safeguards against abuse”.
On behalf of the Guardian, it is submitted that a parent does not have unfettered control over their child and consideration must be given as to decisions, as here, which would significantly curtail the child’s rights under the ECHR. In Re Z (A Child: Deprivation of Liberty: Transition Plan) [2020] EWHC 3038 (Fam) Mrs Justice Knowles considered that living arrangements for the child were restrictive but fell within the scope of parental responsibility. However, a transition plan for moving the child from one placement to another which included the use of force, physical and chemical restraint “strained the boundaries of what was permitted by a parent with respect to the exercise of their parental responsibility” (para 41). Accordingly, in Re Zit was held that the level of force proposed within that transition plan required the authorisation of the court in order for it to be lawfully imposed. Thus, it is said on behalf of the Guardian, it follows that the more severe the intervention, the less likely the matter will be one that should fall within the zone of appropriate parental responsibility. In Re Z, the distinguishing measures which surpassed the “limits to what a parent can reasonably authorise” (para 39) were those involving force, holds and sedative medication.
The guardian argues that the measures imposed upon L fall outside of the scope of parental responsibility. They are measures which would not be imposed in the course of ordinary parenting (Nielsen v Denmark; Re A-F [2018] EWHC 138 (Fam)).
Parental consent to physical restraint causes the Guardian particular concern. It is accepted on behalf of the Guardian that a parent may give valid consent to restraint e.g. where there is a risk of absconding or where life is at risk. However, under regulation 20, parental consent to restraint is not needed. If L’s parents were to object to restraint, their only practical recourse would be to withdraw their consent to L’s voluntary accommodation. Court authorisation, at least, provides court scrutiny.
L’s Guardian is concerned that such intrusive steps should not be left simply within the ambit of Regulation 20. The restraint necessary in this case and the restrictions when taken as a whole should not be considered within the zone of parental responsibility and dealt with by consent without court scrutiny and Art 5 safeguards.
Discussion and analysis
L is a very much loved 12-year-old whose parents wish to do their best for her. L’s unique characteristics are such that she requires a package of care and support. That is provided by the local authority under s.17 CA 1989. L’s parents’ consent to that package of care. L’s parents have accepted reluctantly that they cannot care for her themselves (because L’s behaviours were impacting adversely on her siblings at home) and have agreed to her accommodation pursuant to s.20 CA 1989. L’s parents retain parental responsibility for her throughout the period of accommodation. They can withdraw their consent to her accommodation at any time they wish.
L is currently placed at Rainbow Cottage with a care package to meet her unique needs. Rainbow Cottage is a registered care home. At Rainbow Cottage L is alone. There she is under continuous supervision on a 2:1 basis always in the home and the community day and night. She is never left alone without staff nearby, even when she requests space. Staff may prop her door open and maintain visual checks to ensure safety. Within the home L’s movement is restricted. The outside gate is always locked. The external doors are locked unless L is outside with staff. The door from the dining room to the kitchen while staff are cooking and preparing food is locked for the reasons already given. In addition Team Teach behaviour support (physical intervention) is used when necessary and in line with approved techniques by appropriately trained staff to prevent L causing harm to herself and others; to prevent L leaving the placement of her own accord; for the purposes of transport to and from the placement and educational provisions/appointments and to return L to the placement if she absconds. Those restrictions on her liberty are necessary and, in her welfare, best interests, but that does not mean that limb a of Storck is not met. Indeed, on the facts, it is indisputable that the implementation of the restrictions means that L is kept under complete supervision and control. She is not free to leave the place where she lives. L is now aged 12. It was held by Sir James Munby P in Re A-F [2018] 3 WLR 138 (Fam) that once a child who was under constant supervision had reached the age of 12 the court would more readily come to the conclusion that he was being confined. In my judgment it is thus rightly accepted by all before me that L, on the facts of the case, is confined within the meaning of limb (a) of Storck. That confinement is undoubtedly attributable to the State which is the provider of her placement, the staff therein and the services L receives. Limb (c) of Storck is met. The contentious issue before me is whether L’s parents can provide valid consent to L’s confinement within the meaning of limb (b) of Storck.
As already stated, L’s parents have consented to her confinement and the specific restrictions which amount to that confinement as well as the care package. L’s mother has previously described herself as overwhelmed by the decisions she needs to make for her daughter, but she and L’s father have persevered. They have considered the options for their daughter and made difficult, informed decisions. They have done that because they want to make the decisions for L to ensure she is safe and her needs are met. The decisions that they have taken include their decision to consent to L being subject to restrictions which amount to confinement within Storck limb (a) They consider, as do all parties before me, that the measures which fulfil limb (a) of Storck are in L’s welfare best interests and are necessary and proportionate. The fact that L’s parents accept that they cannot care for her themselves is but one factor which was taken into account when they considered where L was best placed, the care that is to be provided to her under her care package and her containment within limb (a) of Storck. They have also considered her safety, her need for care and support and her need for protection.
L’s parents have actively engaged with the local authority which is providing care and support for their daughter under s.17 CA 1989. They have engaged with the planning process and communicate regularly with L’s social worker. They also engage with the staff at Rainbow Cottage about the day-to-day care L receives. They advocate for their daughter and where appropriate, they provide challenge. Each of L’s parents visits her once a week at Rainbow Cottage. Their visits are social, family time but they are also a vehicle for effective scrutiny of what is happening on the ground and an opportunity to judge whether their daughter’s needs are being appropriately met. The visits enable L’s parents to monitor their daughter’s welfare and intervene where necessary.
Rainbow Cottage is a registered children’s home. The relevant statutory scheme in England is provided by the Care Standards Act 2000 and associated regulations, requiring all children's homes to register with Ofsted before operating, making unregistered operation a criminal offense. This scheme mandates inspections, compliance with standards and ensures appropriate care, management, and provision for children in residential settings, with Ofsted enforcing rules and assessing quality. The Children's Homes (England) Regulations 2015 (2015 regulations) apply and National Minimum Standards are required.
It is accepted before me that L’s parents can consent to L being deprived of her liberty provided that the decision falls within the zone of parental responsibility: Munby P in Re A-F (above) at paragraphs 11; Mr Justice Keehan in Re D [2015] (above); Mrs Justice Knowles in Re Z (above); and Mrs Justice Lieven in TGA (above) applied. However, the zone of parental responsibility although extensive is not limitless. The ambit of parental responsibility, the extent of the zone of parental responsibility, in any particular case is to be ascertained by reference to general community standards in contemporary Britain: Munby P in Re D [2017]EWCA Civ 1695 at paragraph 37 and repeated at paragraph 11 in Re A-F. Mrs Justice Knowles’ decision in Re Z is an example of where on the facts of the case before her she considered the limit of parental responsibility lay.
The real question in this case is whether the decisions that L’s parents have made in relation to her confinement fall within the zone of parental responsibility. For the reasons I set out below, I consider on the acts before me that they do.
L is 12 years old. Most parents would expect to make most, if not all, significant decisions for a 12-year-old. L’s parents are no different. L’s maturity and level of understanding is relevant to her parents’ need to make decisions for her. L is autistic. Her autism impacts her maturity and level of understanding. She does not have the capacity to make decisions for herself. It is accepted before me that L is not Gillick competent. I have described in earlier paragraphs of this judgment, L’s presentations and behaviours. They are relevant to the risks that she poses to herself and others. Any parent of a 12-year-old would expect to take decisions to enable their child to be protected and would regard such decisions as coming within their zone of parental responsibility. Any parent when considering how to ensure their child’s safety would take into account that child’s behaviours and presentation and the risks that flow from them. That is exactly what L’s parents have done here. In this case, L’s parents have given their consent to the elements of her plan which amount to confinement within Storck limb (a). They have done so to ensure her care needs are met and that whilst she is accommodated away from them, she is safe. The decisions they have taken in that regard are acknowledged to be in L’s best interests.
That brings me to the restrictions that amount to L’s continuous supervision and control. In my judgment the 2:1 supervision, the locking of doors and windows etc are all matters that fall squarely within the zone of parental responsibility in relation to a 12-year-old who presents as L does. The issue of physical restraint however is less clear and requires careful consideration. I do not accept the local authority’s submission that the Team Teach interventions are part of L’s care and treatment. I have set out in an earlier paragraph how that intervention has been used to “unstick” her. Whilst it may be used for that purpose, the local authority also candidly state in the social worker's statement that Team Teach will be used to prevent L causing harm to herself and others; to prevent L leaving the placement of her own accord to keep her safe; for the purposes of transport to and from the placement and educational provisions/appointments; and to return L to the placement if she absconds. In those circumstances, the restraint used is, in my judgment, objectively a component of her confinement and falls within limb (a) of Storck.
Further I do not accept the local authority’s submission that the purposes for which restraint is used in this case fall squarely within regulation 20 of the 2015 regulations. Only regulation 20 (1)(a) and (b) would be applicable to L. The scope of those paragraphs is limited. The purpose of restraint and the circumstances in which restraint may be used, if necessary, in L’s case quite clearly go beyond the ambit of regulation 20(1)(a) and(b).
On behalf of the Guardian, it is submitted that consent to such restraint is outside the zone of parental responsibility in this case. I do not agree. In my judgment the consent to restraint as provided here is part and parcel of L’s parents’ exercise of parental responsibility to ensure her safety and welfare when she is outside their care. It would be neglectful for them to not consent. Without the use of restraint for the purposes already described, L would not be safe.
There is one further element to which L’s parents’ consent, and which concerns the Guardian. That is advance consent to L being administered medication including antipsychotics if deemed necessary by medical professionals. At first blush that may appear extreme but on further consideration, I remind myself that L is under 16 and not Gillick competent and thus her parents can consent to her medical treatment if they consider that it is in their child’s best interests to do so.
It is submitted on behalf of the Guardian that parental consent does not provide L with adequate safeguards. It is argued that without prior court authorisation, there is no objective judge of proportionality and necessity. There would be no court consideration of the restraints to be used and how they would be used or indeed any of the other restrictions her parents have agreed. That is true. However, there is no need for a court process here because in L’s case her parents are acting in her best interests. They are consenting to that which all agree is necessary and proportionate. L’s parents know her and her unique presentations better than anyone. They have watched her grow up and until early last year cared for her daily. They thus are in many ways better placed to make the decision about what is necessary and proportionate for their daughter than others.
In terms of the court monitoring the components of L’s confinement to ensure they remain necessary and proportionate, the reality is that any final court order authorising L’s deprivation of liberty would be limited in duration. That duration is likely to be 6 or 12 months from the date of the final order. Within the duration of a final order there would be no court review. However, when the order reaches its expiry date the local authority would need to re-apply for a fresh order. That new application would involve the appointment of a Guardian who would make all necessary investigation and represent L’s welfare interests. The new application would involve court scrutiny of the restrictions proposed and ultimately the court would make a best interests decision on all the evidence. Thus, I accept that the court process provides an element of investigating, monitoring and safeguarding. However, I balance against that the absence of court scrutiny during the currency of any final order. I also have to factor in that the court process itself is intrusive. As part of the process L’s parents would be automatic Respondents. L would need to meet with or speak to her Guardian, if able. The Guardian would be another professional in L’s life albeit for the duration of any court process until the final order is made. The Guardian would not have a role once a final order was made.
During the period of any final order there may be Child in Care meetings. However, they will only be once every 6 months in L’s case. Those meetings could be supplemented by regular, say monthly, reviews of the necessity and proportionality of the restrictions on L’s liberty if the local authority were willing to facilitate such meetings but there is no requirement for such a scheme given L’s age. L’s parents would participate in such meetings as would the professionals, social workers, clinicians etc working with L. The Guardian would not be a participant once a final order is made. Ultimately, I consider that any such meeting is only an effective safeguard if there is someone in the meeting who can object to the continuation of the restrictions proposed if they consider them neither necessary nor proportionate or contrary to L’s best interests. Guardians, IROs and social workers can express opinions, but they do not hold parental responsibility and cannot object. The only people that can make an effective objection are L’s parents. If they do object and withdrew their consent to L’s confinement, then the local authority will have to apply to the court under s.100 CA 1989 for an order authorising the deprivation of L’s liberty. They cannot lawfully confine her otherwise. Implicit in the forgoing is my rejection of the submission on behalf of the Guardian that all L’s parents can do is withdraw their consent to their daughter’s accommodation. That is one option open to them. The other is to withdraw their consent to such restrictions on L’s liberty as they do not consider either necessary or proportionate or in L’s best interests.
In my judgment the appropriate exercise of parental responsibility by L’s parents together with the statutory scheme set out at paragraph 54 above, provide effective safeguards for L on the facts of this case.
In the circumstances and on the facts of this case, I consider that the consents L’s parents have given fall within the zone of parental responsibility. They are valid consents within the meaning of limb (b) of Storck. They are decisions taken in her best interests. Accordingly, L is not being deprived of her liberty for the purposes of Article 5, and these court proceedings are not necessary.
