The Court of Appeal has handed down judgment in J v Bath v North East Somerset Council and others [2025] EWCA Civ 478, which confirms that a local authority cannot exercise its powers under a care order to consent to the confinement of a child which the authority had itself arranged.
The appeal concerned the Article 5 ECHR rights of a profoundly disabled 14-year-old child. In the High Court, Lieven J concluded that it was not necessary to make an order under the Court’s inherent jurisdiction authorising the deprivation of J’s liberty. She held that the local authority, in the exercise of parental responsibility conferred by a care order, had consented to the living arrangements that amounted to a confinement, and so no deprivation of liberty arose.
The Court of Appeal concluded that Lieven J erred in holding that J was not deprived of his liberty. An order authorising J’s deprivation of liberty was therefore necessary to make J’s care arrangements lawful under Article 5 ECHR and section 6 of the Human Rights Act 1998.
The question was whether J’s care arrangements amount to a deprivation of his liberty under Article 5 ECHR. The European Court of Human Rights established in Storck v Germany (App No 61603/00) (2006) 43 EHRR 6 that a person will be deprived of their liberty when the following three elements are present:
- The “objective element”: confinement in a particular restricted space for a not negligible length of time; and
- The “subjective element”: there has not been valid consent to the confinement in question; and
- The deprivation is imputable to the State.
Only the “subjective element” was at issue in Re J; it was accepted by all parties and the Court that the other two elements were present. In relation to the second element, Lieven J concluded that the local authority had the power to provide consent to J’s confinement under section 33(3) CA 1989, and the local authority’s consent was “valid consent” for the purpose of the subjective element of the Storck test.
The Court of Appeal concluded that the local authority, as an organ of the state, could not provide “valid consent” for the purpose of the subjective element of the Storck test. Therefore, the three elements of the Storck test were satisfied. The Court of Appeal held that Lieven J’s approach was wrong, as it would deny the child all the important protections and safeguards under Article 5. Such an interpretation of Article 5(1) ECHR would subvert the purpose of the right in that article.
The Court emphasised that it was not, in this case, addressing the question of the scope of parental responsibility for children under the age of 16, and left for another day the crucial issue of whether a natural person with parental responsibility can provide valid consent to arrangements that confine a child under the age of 16.
The judgment is also useful as a reminder of two points:
- The concept of a “deprivation of liberty” under Article 5 ECHR is an autonomous concept under the law of the Convention. It is wrong in principle to analyse the question of “valid consent” under Article 5 ECHR by asking whether consent could be provided under domestic law.
- That human rights issues can arise in any legal context, and 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.
Joanne Clement KC and Samuel Willis acted for the Secretary of State for Education. The Judgment is available here: https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/478
