QX (Parental Consent for Deprivation of Liberty (“DoL”):

In an important decision delivered by His Honour Judge Burrows on 31 March 2025, the High Court addressed issues regarding parental consent and the legal framework that governs Deprivation of Liberty (DoL) for children.  

The Court confirmed that parents, in the proper exercise of their parental responsibility, can consent to arrangements that would otherwise constitute a DoL, when the child is not Gillick competent.  

Background

QX is a young man aged 15.  He has a diagnosis of autism with severe learning disabilities.  As such, there was no dispute that he requires continuous support and care; neither was there dispute that QX was not Gillick competent.  Given the degree and severity of QX’s condition, it was accepted that this position will not change.  

When QX turns 16, any authorisation for the deprivation of QX’s liberty stemming from the care and support he is in receipt of, would fall under the scrutiny of the Court of Protection.  There is no doubt that the care plan currently in place involves continuous supervision and control and that he is not free to leave where he resides without support and that this arrangement will continue when QX turns 16.  

QX has four people in his life that hold parental responsibility, them being his biological parents, together with a previous stepparent and their husband.  QX lived with and was cared for by the previous stepparent post their divorce from his biological father for a long period of time and an application was therefore made and granted for them to have parental responsibility by way of Child Arrangement Order, together with their now husband. 

QX now resides in a placement with appropriate care following an incident in December 2024.  The circumstances of his placement involve his objective DoL as defined in Cheshire West.  As far as the Children Act 1989 is concerned, the current arrangement for QX is regulated by s.20.  It was considered whether a more institutional setting was appropriate for QX, namely secure accommodation; however, this was decided against as it was thought that it would be counter therapeutic.  

The Local Authority (“LA”), however, were uneasy about the legal basis for the continued arrangement.  They applied for a Care Order in the Family Court, and then they applied for authorisation by the High Court of what they saw as a DoL of QX. 

The matter came before Ms Justice Henke on 13 February 2025, and she allocated the case to HHJ Burrows.  HHJ Burrows was also allocated the care proceedings.  At the first hearing of those proceedings, he made no interim care order, but he did authorise QX’s DoL under the inherent jurisdiction pending proper argument of both issues. 

Care Order  

In his judgment, HHJ Burrows clearly outlined his position that he would not be making a Care Order.  For the same reasons that he gave in his decision of Lancashire County Council -v- PX [2022] EWHC 2379 (Fam). 

HHJ Burrows was satisfied that the threshold for a Care Order had not been met: QX is being accommodated by way of s.20 of the Children Act 1989 in agreement with the parents, the parents have a child focused approach to the care and work well the with LA.  HHJ Burrows went on to note that in these circumstances a Care Order would in fact not be in the child’s welfare interests.  Reason for this included that it would impact the parental responsibility granted by the Child Arrangement Order.   On this basis, HHJ Burrows indicated to the LA that he had no intention of making a Care Order and granted them permission with withdraw their application, which they did.   

Deprivation of Liberty

In his judgment, HHJ Burrows reiterated the three components to a DoL (Storck -v- Germany (2005) 43 EHRR 96) which are as follows: 

1. Objective confinement – following Cheshire West this means that a person is confined in a particular restricted place for a not negligible period of time and is under continuous supervision and control and not free to leave that place.  

2. Absence of consent to that confinement – either because the person does not consent (e.g. a prisoner) or is unable to consent (in the case of an adult who lacks capacity or a child who is not competent to consent).  

3. State is responsible for the individual.  

HHJ Burrows was not concerned in this matter with the first or third component as it was not argued that QX came within the decision of Lieven, J in Peterborough City Council -v- a Mother and a Father [2024] EWHC 493 (Fam) (“Peterborough”) or the most recent decision of Rochdale Borough Council -v- V [2025] EWHC 200 (Fam), a decision of HHJ Middleton-Roy.  In these cases it was considered that it was the mental and physical disability of the child that deprived them of their liberty and not any ‘restrictions’ that were put in place by the State or parents to keep them safe.  These elements were not in dispute in this case. 

HHJ Burrows made reference to Lieven, J’s view in the Peterborough case at paragraph 38 where she stated that “on a conceptual level it is difficult to see how one can be deprived of something that one is incapable of doing.  Equally, how can one be deprived of a right that one is incapable of exercising, not through the actions of the State or any third party, but by reason of one’s own insuperable inabilities”.  HHJ Burrows noted that had Peterborough rested wholly or in part on this argument he would have struggled to follow those authorities as they are “plainly wrong” as they fail to distinguish between ‘negative’ liberty and ‘positive’ liberty.  HHJ Burrows highlighted that there are many people who are incapable of doing things without the help of others and are supported to do these things by family/carers.  Where a carer for a profoundly physically, but not mentally disabled person decides not to assist that person to move from a place where they do not want to be, no one would argue that the disabled person was not deprived of their liberty.  Unless it seems, they are mentally incapable too.  HHJ Burrows stated that the universality of human rights for abled and disabled people alike as in Cheshire West must be recognised and as such in both cases they are deprived of their liberty.  

HHJ Burrows went on to also highlight that Peterborough was also wrong because the decision conflicts with Cheshire West as distilled through the Court of Appeal’s judgement in Rochdale MBC -v- KW [2015] EWCA Civ 1054.  In that case, Lord Dyson, MR rejected an earlier iteration of the Peterborough argument by Mostyn J.  Lord Dyson, MR noted that Mostyn J purported to apply the test required by Cheshire West and concluded that it was impossible to see how the protective measures in place for KW could linguistically be characterised as a DoL.  Mostyn J argued that KW was not in any way being constrained from exercising the freedom to leave rather she did not have the physical or mental ability to exercise that freedom and as such was not DoL.  The Court of Appeal overturned Mostyn J.  

HHJ Burrows concluded that a person subject to a care plan that requires them to reside in a particular place and be under constant supervision and control and are not free to leave, whether or not their physical or mental capabilities prevent them from leaving, is deprived of their liberty, absent their consent.   

Parental responsibility and consent  

The question HHJ Burrows had to answer was whether a person who holds parental responsibility for a child can give consent for that child to be placed in a regime that leads otherwise to their DoL.  HHJ Burrows noted that the answer to the question is given by Lieven J in Lincolnshire County Council -v- TGA [2022] 3 WLR 1297 (“Lincolnshire”).  In essence, parental responsibility can be deployed to consent to an objective DoL provided the parental responsibility is for the interest of the child.  In QX, HHJ Burrows concluded that given all those with parental responsibility for QX had engaged in the care planning process, understood his needs and how they are to be met, their consent had been given freely to QX’s DoL and the Court had no place in further scrutiny or authorisation of the present arrangements.  As such, the application for an order under the inherent jurisdiction was dismissed and the present authorisation was discharged.  

In making this decision, HHJ Burrows recognised that the finding of parental consent can prevent Article 5 being engaged, which ensures that those who lose their liberty can only lawfully do so under certain specified circumstances, applying to a child such as QX.  The Court here recognised that in some cases parent(s) know best and can freely act in the child’s best interests.  However, did state that local authorities should ‘…err on the side of caution if there is a prospect of parents being overwhelmed by the decision-making process or changing their minds because of harrowing reports on a placement and a desire to please their child’ then the matter should be brought to court for oversight and scrutiny. 

HHJ Burrows also disagreed strongly with previous decisions seeking to water down the definition of DoL and confirmed the correct test is that set out in Cheshire West.