Court of Appeal Allows Appeal Concerning Local Authorities’ Ability to Consent to Confinement of Under-16-Year-Old Children Subject to Care Orders

39 Essex Chambers’ barristers have acted in a successful appeal in an important case concerning the ability of local authorities to consent to the confinement of children aged under 16 and the subject of care orders, in circumstances where that confinement would otherwise amount to a deprivation of liberty.

Victoria Butler-Cole KC represented the mother of the child with whom the proceedings were concerned, while Alex Ruck Keene KC (Hon), Arianna Kelly and Eleanor Leydon represented the First Intervener (Mind & Article 39) and Steve Broach KC, Jake Thorold and Santosh Carvalho represented the Second Intervener (Children’s Commissioner for England). All three parties supported the successful appeal which was brought by the Children’s Guardian.

The Court of Appeal, comprising Sir Andrew McFarlane, Lady Justice King and Lord Justice Singh, found that the High Court was wrong to conclude that a local authority could provide the required consent in the exercise of its corporate parental responsibility.

In the High Court, Mrs Justice Lieven concluded that, in principle and on the facts of the case, a local authority with parental responsibility for a child who is the subject of a care order could give valid consent to their confinement. This meant, in Mrs Justice Lieven’s judgment, that the child was not deprived of their liberty because the second limb of the test for what amounts to a deprivation of liberty, namely that the person is confined without their valid consent, was not met. As such, the child fell outside of Article 5 European Convention of Human Rights (ECHR) protections, with wider ramifications for many other children in and entering care.

The Court of Appeal has confirmed, however, that Mrs Justice Lieven was wrong to conclude that a local authority could provide the required consent in the exercise of its corporate parental responsibility. Although the Court’s reasoning is to follow, this is an important clarification, taking immediate effect, that the direction taken by Mrs Justice Lieven was wrong and must not be followed.