Article 39 and Mind charities have been granted permission to intervene jointly in the upcoming appeal of the High Court decision in J: Local Authority consent to Deprivation of Liberty, Re [2024] EWHC 1690 (Fam).
In a case concerning a disabled boy, ‘J’, who was then aged 14 and living in a children’s home where he was subject to restrictions amounting to deprivation of liberty, Lieven J held that a deprivation of liberty order from the High Court was unnecessary because his local authority, once it had obtained a care order, could give valid consent through its exercise of parental responsibility.
A local authority obtains parental responsibility for a child when they are made the subject of an interim care order or a care order.
Lieven J held that J’s right to liberty, protected through Article 5 of the European Convention on Human Rights (ECHR), would not be breached through his local authority deciding to deprive him of his liberty “because all agree it is in his best interests to remain at the children’s home” with extensive restrictions. It was therefore “quite difficult to see what the point of [a deprivation of liberty] order is on the facts of a case like J’s”. The court found the local authority was able to give valid consent to deprive him of his liberty “in order to keep him safe”, protect his right to life under Article 2 ECHR and ensure his best interests.
Carolyne Willow, Article 39’s Director, said:
“This is an extraordinary judgment potentially affecting many hundreds of highly vulnerable children each year, removing them from fundamental human rights protection governing what the state can and cannot do to children behind closed doors.
“This could take us back to the children’s homes scandals of the 1980s, when abusive controls on children’s everyday movements were allowed to go unchecked because they were deemed to be therapeutic and in the best interests of children.
“Local authorities should not fear having to go before a court to explain why they believe a child in their care needs to be deprived of their liberty, to account for the individual restrictions proposed for a child, and to describe how the child will be looked after and protected on a day-to-day basis. Judicial oversight is a vital mechanism for upholding the right to liberty of children in care – and that includes disabled children.
“We hope to assist the court in understanding why it is vital that local authorities are not given wide power to deprive children in care of their liberty, by spelling out the tremendous risks for very vulnerable children should this judgment not be reversed.”
Alice Livermore, Head of Legal of Mind, added:
“The precedent this sets means that care experienced children could be admitted as informal patients to mental health wards on the basis of a local authority’s consent and would find themselves unable to access any of the rights and safeguards they could expect under the Mental Health Act 1983.
“Anyone affected could potentially be confined for months or even years at a time on the basis of the local authority’s consent. This would be a backwards step for care experienced children and could deny vital protections to a particularly vulnerable cohort of children and young people, leaving them without a voice or route to challenge their confinement.”
Notes
- The High Court’s judgment, dated 25 June 2024, can be found here.
- The appeal is brought by J through his guardian.
- The hearing will be heard in the Court of Appeal on 10 December 2024.
- Article 39 and Mind were granted permission to intervene on 22 October 2024. They are represented by Alex Ruck Keene KC, Arianna Kelly and Eleanor Leydon of 39 Essex Chambers.
