PLEASE NOTE: The legal position in this case may have changed. In June 2026, the Supreme Court, in A Reference by the Attorney General for Northern Ireland [UKSC/2025/0042], overturned the approach established in Cheshire West, on which this decision relied. This case should therefore be read with caution: it is currently uncertain whether the reasoning and outcome would be reached by the courts applying the revised legal test.
Local authorities can’t give valid consent to the deprivation of liberty of children in their care, rules Court of Appeal
Overview, including the decision of the High Court which was appealed against
This appeal concerns the decision of the High Court ([2024] EWHC 1690 (Fam)) made in June 2024 and relating to the deprivation of liberty of a 14 year-old boy referred to in the judgment as ‘J’.
The High Court concluded that in J’s circumstances there was no need for the High Court to make an order authorising deprivation of J’s liberty because (1) he was the subject of a care order, and (2) it was beyond dispute that J’s complex required arrangements amounting to a restriction of his liberty, as defined in Article 5 of the European Convention on Human Rights (ECHR), but (3) both J’s parents and the responsible local authority consented to that restrictive regime. In other words, the High Court concluded that it was lawful for the local authority, in the discharge of its parental responsibility for J, to consent to the continued restriction of his liberty, that a deprivation of liberty order was not required and that Article 5 ECHR was not engaged.
This decision was appealed by J, through his Cafcass children’s guardian, on the basis that the High Court was wrong and that a deprivation of liberty order was necessary. The appeal was supported by J’s parents.
Article 39, Mind, the Children’s Commissioner for England and the Secretary of State for Education all acted as intervenors (meaning they were allowed to participate despite not being parties to the proceedings).
Background – J’s circumstances
J has multiple, complex, life-long health needs. He has autism, ADHD and an eating disorder which causes him to try and eat non-food items. In 2020, with his parents’ consent, J was voluntary accommodated under section 20 of the Children Act 1989 and he moved into a specialist children’s home. Due to concerns about J’s parents engagement in J’s care, the local authority issued care proceedings which led to the family court making a care order with respect to J. The care plan for J is to continue to live in his current children’s home for the remainder of his childhood.
The legal framework
Care orders and the exercise of parental responsibility
Section 33 of the Children Act 1989 concerns the effects of a care order. Section 33(3)(b) states that while a care order is in force, the local authority designated in the order to look after the child has parental responsibility for that child and has the power to define (“determine”) the extent to which other persons with parental responsibility can exercise parental responsibility for the child. This provision gives local authorities the power to limit the use of parental responsibility by others, including the child’s parents. This can involve, for instance, overriding parental objections to a specific decision (unless the law says otherwise).
This power, however, is not absolute and section 33(4) prohibits local authorities from limiting the exercise of parental responsibility by others unless it is necessary to safeguard or promote the child’s welfare.
Moreover, the courts have defined further limitations on the use of the powers set out in section 33(3)(b) through case law. In 2020, in Re H, which concerned the power of local authorities to consent to routine vaccinations for children in care despite parental objection, the Court of Appeal confirmed that local authorities should not use Section 33(3)(b) to override the views or wishes of a child’s parent in serious or grave matters with profound or enduring consequences for the child:
“… local authorities and the courts have for many years been acutely aware that some decisions are of such magnitude that it would be wrong for a local authority to use its power under s.33(3)(b) to override the wishes or views of a parent. Such decisions have chiefly related to serious medical treatment, although in Re C (Children) [2016] EWCA Civ 374; [2017] Fam 137 (Re C), the issue related to a local authority’s desire to override a mother’s choice of forename for her children. The category of such cases is not closed, but they will chiefly concern decisions with profound or enduring consequences for the child”.
European Convention on Human Rights (ECHR) – Article 5: right to liberty and security
Article 5 ECHR grants everyone – children and adults – the right to liberty and personal security. It protects children (and adults) from unlawful deprivation of liberty. The Human Rights Act 1998 gives children (and adults) the right to challenge human rights breaches through the UK courts, rather than through only the European Court of Human Rights. Section 6 of the Human Rights Act 1998 requires all public authorities (which includes private bodies and organisations carrying out a public function) to act compatibly with the rights in the ECHR.
Article 5: Right to liberty and security
1 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:
[…]
(d) 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;
[…]
4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
Case law – European Court of Human Rights (ECtHR)
Storck v Germany (App No 61603/00) (2006) 43 EHRR 6
This landmark ECtHR judgment concerned the circumstances of a woman who challenged her confinement in different psychiatric units alleging that the medical treatment she had received had violated Articles 5 and 8 of the ECHR. She also complained that the proceedings to review the legality of the restrictive measures were inadequate and violated the Convention rights.
The ECtHR held that for Art 5 to be engaged, three elements must be present:
- The ‘objective element’: confinement in a particular restricted space for a not negligible length of time; and
- The ‘subjective element’: there is no valid consent to the confinement; and
- The deprivation is imputable (attributable) to the State.
HL v United Kingdom (Application: 45508/99) 40 EHRR 761
Summary of HL v United Kingdom (paragraph 47 of):
“HL v UK concerned an [autistic] adult who had, for many years, been resident at Bournewood Hospital … Following a deterioration in his behaviour during a period of home leave, he was admitted to hospital informally and, because of his apparent compliance, no proceedings were taken to detain him under the Mental Health Act 1983. Despite the benevolent motive underlying the care of the hospital, and the clear need for him to be cared for in a restricted regime, the ECtHR held that the circumstances amounted to a breach of Art 5 and that there had been a denial of access to any formal procedure for review or challenge of the care regime on his behalf. Having noted the striking lack of any procedures for his admission and continued retention in the hospital [paragraph 120], the [European Court of Human Rights] observed:
‘As a result of the lack of procedural regulation and limits, the hospital’s health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit: … this left ‘effective and unqualified control’ in their hands. While the court does not question the good faith of those professionals or that they acted in what they considered to be the applicant’s best interests, the very purpose of procedural safeguards is to protect individuals against any ‘misjudgments and professional lapses’ …’ (paragraph 121 of HL v UK)
…
The court … finds that this absence of procedural safeguards fails to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, to comply with the essential purpose of art 5(1) of the Convention. On this basis, the court finds that there has been a violation of art 5(1) of the Convention.’ (paragraph 121 of HL v UK)
UK case law
Cheshire West [2014] UKSC 19
The Cheshire West UK Supreme Court case concerned two sisters in their early twenties who had been in care as children, and a man in his late thirties. They were each subject to constraints on their liberty arising from their disabilities. The Supreme Court emphasised that “people with disabilities, both mental and physical, have the same human rights as the rest of the human race” and “far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities” (see para 45). The case established the so-called ‘acid test’ for deprivation of liberty under the Mental Capacity Act 2005, which applies to people aged 16 and over – deprivation of liberty occurs when a person is under the complete supervision and control of those caring for them, they are not free to leave and the restrictions on their liberty are the responsibility of the state. The court held that individuals who lack capacity to give their consent to deprivation of liberty must have special protection in place (i.e., the deprivation of liberty safeguards (DOLS)).
Discussion and analysis
The Court of Appeal confirmed that:
“…the question of whether it is necessary for the court to authorise the deprivation of liberty of a child who is the subject of a care order, where the local authority consents to the child’s confinement, must be determined in accordance with the Human Rights Act 1998 in a manner that is compatible with the ECHR”. (Paragraph 46; emphasis added)
The framework for the analysis of such issues is not set out within domestic law (for instance, that relating to parental consent) but, instead, one must assess it through the lens of the ECHR – in this case, the structure of Art 5.
Although HL v UK (see case law section above) related to an adult, “the underlying emphasis on the ‘essential purpose’ of Art 5 and the importance of the ‘distinctive and cumulative protections’ offered by Art 5(1)+(4), must apply in equal measure to a child” (paragraph 48; emphasis added).
Concluding remarks of the three justices considering the appeal included:
“… [the error of the High Court], in short, was to focus on whether, as a matter of domestic law, a local authority may provide ‘valid consent’… If, instead, the focus had been, as it should have been, upon the overarching purpose of Art 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”. (Sir Andrew McFarlane, President of the Family Division; paragraph 52; emphasis added)
“Where, as here, the [Art 5 test established by the European Court of Human Rights in Storck v Germany] is met and there is a deprivation of liberty then, for the reasons given by the President, I agree that, in circumstances such as these, a breach of Art 5 may only be avoided by the making of a deprivation of liberty order. 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…”. (Lady Justice King, paragraphs 56-57; emphasis added)
“… 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.” (Lord Justice Singh, paragraph 58; emphasis added)
The Court of Appeal’s decision
The appeal against the June 2024 High Court judgment was allowed.
The Court of Appeal authorised a deprivation of liberty order for J based on the arrangements proposed by the local authority and remitted the case to be reviewed by the family court the following month.
You can read the full Court of Appeal judgment here: J v Bath and North East Somerset Council & Ors [2025] EWCA Civ 478 (29 April 2025)
The judgment of the Family Court which was overturned by the Court of Appeal can be read here: J: Local Authority consent to Deprivation of Liberty, Re [2024] EWHC 1690 (Fam) (25 June 2024)
Learn more:
Re. the exercise of parental responsibility for children in care:
January 2022: Vaccinations for children in care and parental consent (High Court judgment)
Re. deprivation of liberty:
Law map: deprivation of liberty of children and young people
November 2024: Deprivation of liberty (inherent jurisdiction) (High Court judgment)
November 2022: Deprivation of liberty (hospital) (High Court judgment)
August 2021: Inherent jurisdiction in deprivation of liberty applications (Supreme Court judgment)
April 2021: Landmark judgments series – the ‘D judgment’ (deprivation of liberty) (Supreme Court)
