J v Bath and North East Somerset Council [2025] EWCA Civ 478
ICLR
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Court of Appeal
J v Bath and North East Somerset Council
2025 Feb 5; April 29
Sir Andrew McFarlane P, King, Singh LJJ
Children— Child in care— Deprivation of liberty— Child under 16 placed in residential children’s home subject to restrictions amounting to deprivation of liberty— Local authority seeking order authorising deprivation of liberty— Judge declining to make order where local authority and parents consenting to restrictive regime— Child appealing against refusal to make order— Whether judge erring in legal analysis— Whether court order necessary to authorise deprivation of liberty— Children Act 1989 (c 41), ss 20, 31, 33(3) — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5
A 14-year-old boy who had a complex set of diagnoses was placed in a specialist children’s home by the local authority, as a looked after child under section 20 of the Children Act 1989, in circumstances where it was beyond dispute that he needed to be looked after in such a way that his liberty was restricted to a degree engaging article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. On a subsequent application for a full care order under section 31 of the 1989 Act, the local authority also sought an order authorising the deprivation of the child’s liberty, believing that such a significant step required court approval and oversight. The judge held that there was no need for a deprivation of liberty order since it was lawful for the local authority, in the discharge of its parental responsibility, to consent to the continued restriction of the child’s liberty where it was not disputed that the high level of care, supervision and restriction was necessary to prevent him from harming himself, was beneficial to his welfare and in his overall best interests, and where both of his parents and the local authority consented to that restrictive regime.
On appeal by the children’s guardian—
Held, appeal allowed. Rather than analysing matters through the lens of the domestic law relating to the exercise of parental responsibility, the court was required to proceed in accordance with the Human Rights Act 1998 which required that the structure imposed by article 5 of the Human Rights Convention be applied to ensure that individuals were not deprived of their liberty without proper safeguards which would ensure that the legal justifications for the constraints which those individuals were under were made out. Accordingly, the child had to be afforded the benefit of the checks and safeguards under article 5(1) or, separately, of access to a process in court under article 5(4). Irrespective of whether, as a matter of domestic law, a local authority might give valid consent if it held parental responsibility under a care order, it was simply not open to the state, through the local authority, to avoid the constraints of article 5 and thereby bypass the important protection, safeguards and independent authorisation by a court that would otherwise be required. It followed that the judge had erred in her analysis and, had she instead focused correctly on the overarching purpose of article 5, the inevitable conclusion would have been that it was not permissible for the local authority to give valid consent to a deprivation of liberty and that a court order was required for that purpose (paras 49, 50, 52, 53, 54, 58).
HL v United Kingdom (2004) 40 EHRR 32, ECtHR, Storck v Germany (2005) 43 EHRR 6, ECtHR, dicta of Baroness Hale of Richmond DPSC in Surrey County Council v P [2014] AC 896B, para 56, SC(E), dicta of Keehan J in In re AB (A Child) (Deprivation of Liberty: Consent) [2016] 1 WLR 1160B, para 29 and dicta of Sir James Munby P in In re A (Children) (Care Proceedings: Deprivation of Liberty) [2019] Fam 45B, para 12(i) considered.
Per curiam. Where a judge thinks it necessary to raise an important point of law which has not been raised by any of the parties there is likely to be real benefit in adjourning the case to allow the parties to take stock and make considered submissions on the issue. In a case like the present where there is no urgency (since the child’s arrangements have been settled for some time and are not going to change), and where the consequence of the decision is likely to impact upon many other cases, there is a pressing need to adopt a more comprehensive analysis by requiring detailed submissions focused on the point that the judge raises, rather than the judge having to rely on the arguments that counsel are able to marshall, without warning, on the day (para 25).
Sophia Roper KC and Libby Harris (instructed by Daniel Woodman & Co Ltd ) for the child, by the children’s guardian.
Lorraine Cavanagh KC and Tanya Zabihi (instructed by Solicitor, Bath and North East Somerset Council) for the local authority.
Sophie Smith-Holland (instructed by RWK Goodman LLP) for the mother.
Sorrel Dixon (instructed by Lyons Davidson Solicitors) for the father.
Alex Ruck Keene KC, Arianna Kelly and Eleanor Leydon (instructed by Director, Article 39 and Head of Legal, Mind) for Article 39 and Mind, intervening.
Stephen Broach KC, Jake Thorold and Santosh Carvalho (instructed by Leigh Day Solicitors) for the Children’s Commissioner for England, intervening.
Joanne Clement KC and Samuel Willis (instructed by Treasury Solicitor) for the Secretary of State for Education, intervening.
Jeanette Burn, Barrister
Referenced Legislation
Children Act 1989 (c 41), ss 20, 31, 33(3)
Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5
Full judgment: BAILII
Subject(s):
- Deprivation of liberty - children🔍 See also: Category:Deprivation of liberty
Date: 29/4/25🔍
Court: Court of Appeal (Civil Division)🔍
Judicial history:
Judge(s):
Parties:
Citation number(s):
What links here:Published: 6/5/25 20:51
Cached: 2025-05-17 14:55:19