Can a Local Authority consent to a child’s deprivation of liberty without a DoLs order?

In a recently published High Court judgment concerning J, a 14-year-old boy, with a complex set of diagnoses including autism, ADHD and Pica, the question was raised as to whether the Local Authority were able to consent to J’s deprivation of liberty under a Care Order.  

J resides in a specialist Children’s Home and requires a high level of care and supervision. J is a looked after child under s20 Children Act 1989.

The LA applied to the Court for a Care Order and DoLs order. Firstly, the Care Order was made by Lieven J. However, when considering whether it was necessary to make a DoL order, Lieven J accepted that the first and third limbs in Storck v Germany were met. The first limb being the objective element of confinement in a restricted space for a non-negligible period of time, and the third being the attribution of responsibility to the state.

In respect of limb two (being the subjective element of consent), Lieven J stated that “the decision to “deprive him of his liberty” is not in my view a decision of such magnitude as to fall outside the LA’s powers, but rather an exercise of their statutory duties to him”. As such, the Court found that the Local Authority, under their statutory duties and powers within section 33 of the Children Act, had the power to consent to the restrictions imposed upon J, and therefore no DoLs order was required. Lieven J ultimately concluded that “In my view the LA have the power to consent to the restrictions and therefore to the deprivation of his liberty, and no DoLs order is needed.”

Following the recent publication of the judgment, given its contrary position to established case law of the Supreme Court in Cheshire West and Chester Council v PWK, we will be cautiously awaiting any comment from the appellate courts to hopefully provide clarification in respect of the approach which should be taken regarding children under 16. Until such time, we would advise proceeding with caution when applying the Court’s decision.