UPDATE: Appeal allowed! The Court of Appeal held on 5 February 2025 that local authorities cannot give valid consent to the confinement of children in care. This means a local authority seeking to deprive a child in care of their liberty must seek court authorisation.
This judgment was delivered orally by Sir Andrew McFarlane, President of the Family Division; written judgment to follow.
The Court of Appeal is to hear a very significant appeal this week, affecting the fundamental rights of children in care.
The appeal will be heard by the President of the Family Division, Lady Justice King and Lord Justice Singh on 5 February 2025. It can be watched live (Court 63 – link here).
In June 2024, the High Court held that, in certain circumstances, it is unnecessary for local authorities to obtain court authorisation before depriving a child in care of their liberty. The decision was made about 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.
Mrs Justice Lieven held that a deprivation of liberty order from the High Court was unnecessary because his local authority, once it had obtained a care order in respect of J, could give valid consent through its exercise of parental responsibility.
Mrs Justice Lieven held that the boy’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 of the ECHR and ensure his best interests.
Article 39 and Mind charities were granted permission last October to intervene jointly in the appeal, and will be stressing to the Court of Appeal that Parliament intended – through section 25 of the Children Act 1989 – that local authorities must seek court authorisation before depriving a child in care of their liberty. We will also underline the risks to highly vulnerable children should local authorities avoid judicial scrutiny.
Children in care are frequently confined in grossly unsuitable accommodation – including rental properties, caravans and hotel rooms – arranged in crisis due to a severe lack of specialised, high quality provision. Judges, the Children’s Commissioners for England and Scotland, and Article 39 and other charities have for many years criticised the dire lack of safe and suitable homes for children in care. Allowing local authorities to impose serious restrictions on the day-to-day freedoms of children in care without judicial scrutiny and a robust, independent focus on the child’s perspective would be deeply regressive. Article 39 fears it could take the children’s care system back to an era when local authorities and managers of children’s homes exercised enormous power and control over children, and neglect, coercion and mistreatment went unchecked for decades.
Notes
- The Court of Appeal hearing can be watched online here.
- The High Court’s judgment, dated 25 June 2024, can be found here.
- Article 39 and Mind are represented by Alex Ruck Keene KC, Arianna Kelly and Eleanor Leydon of 39 Essex Chambers.
