The vexed question of whether and under what circumstances parents can consent to (or otherwise authorise) the confinement of children under 16 came before HHJ Burrows (sitting as a High Court judge) in QX (Parental Consent for Deprivation of liberty: Children under 16) [2025] EWHC 745 (Fam). As he noted:
3. The issues I had to determine in this case are almost identical to those before me in Lancashire County Council v PX[2022] EWHC 2379 (Fam)(“PX”). There, I had to decide whether a care order should be made where those with parental responsibility had asked the LA to accommodate and look after the child who had serious mental health conditions that made him impossible for them to care for. Furthermore, in the event that I did not make a care order, whether the child’s care plan, which inevitably resulted in his objective deprivation of liberty at the behest of the State had to be authorised by the Court?
4.I decided that a care order was not appropriate in that case. I reached the same decision in this case.
5. In PXI decided I would follow the then recent decision of the High Court in Lincolnshire County Council v TGA[2022] 3 WLR 1297 (FD) (“Lincolnshire”), a judgment of Mrs Justice Lieven, meaning that parental consent to the child’s arrangements acted to prevent the engagement of Article 5 of the European Convention of Human Rights (ECHR).
6. I reached that conclusion in PX because I decided that unless I was satisfied that Lincolnshire was wrongly decided, I ought to follow it. However, at the earlier hearing in this case, I was mindful that the tide may have turned since then and the approach taken by Lieven, J needed to be reconsidered. This was particularly so because of the recent Court of Appeal decision in which Lieven, J’s judgment in Re J: Local Authority Consent to Deprivation of Liberty)[2024] EWHC 1690 (Fam)had been reversed. Unfortunately, at both hearings in this case, and at the time this judgment is written, the judgment of the Court of Appeal in J had not been handed down.
HHJ Burrows continued:
7. Having read and heard focused argument on this issue and having considered the relevant authorities relied upon, I have come to the same conclusion as I did in PX and I have followed Lieven, J. I do, however, have some misgivings, which were the basis of my interactions with counsel. It seems right for me to outline them here.
Helpfully, HHJ Burrows undertook an exercise which is not always done in this context, namely separating out the individual elements of deprivation of liberty:
36. There are three components to a deprivation of liberty: see e.g. Storck v Germany (2005) 43 EHRR 96).
37. The first is objective confinement which, following Cheshire Westmeans for a person to be confined in a particular restricted place for a not negligible period of time, and being under continuous supervision and control and not free to leave that place (See [2014] UKSC 19).
38. The second component is the absence of consent to that confinement either because the person does not consent (like 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).
39. The third component is that the state is responsible.
40. I am not concerned with either the first or the third component in this case. In particular, no one seeks to argue that QX comes within another decision of Lieven, J., namely Peterborough City Council v a Mother and a Father [2024] EWHC 493 (Fam)(“Peterborough”) or the more recent decision of Rochdale Borough Council v V [2025] EWHC 200 (Fam) a decision of HHJ Middleton-Roy sitting as a High Court Judge. In those cases, such was the mental and physical disability of the child, that it deprived them of their liberty and not any “restrictions” that were put in place by the State or parents to keep them safe. As Lieven, J put it at [38] of the Peterborough case:
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 ones own insuperable inabilities.
41. Had this case rested wholly or in part on this argument, I would have struggled to follow those authorities that appear to be plainly wrong. Wrong conceptually, because they fail to distinguish between “negative” liberty, the freedom from being prevented from doing something, and “positive liberty”, the freedom to be enabled to do something. There are many people who are incapable of doing things without the help of others and are enabled to do those things by carers/family etc, often funded or provided for by the State, or following assessments under the Care Act. 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 surely argue that the disabled person was not deprived of their liberty. Unless, it seems, they are mentally incapable, too. But in that case, the universality of human rights, for abled and disabled people alike, as in Cheshire Westmust be recognised. In which case both are deprived of their liberty.
42. Wrong also because these decisions seem to conflict with the Cheshire Westdecision as distilled through the Court of Appeal’s judgment 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. That argument was summarised by the Court of Appeal at [4]:
“Mostyn J purported to apply the test required by Cheshire West, although it is clear from para 19 of the first judgment that he did not agree with it. He said at para 17 that it was impossible to see how the protective measures in place for KW could linguistically be characterised as a “deprivation of liberty”. Quoting from JS Mill, he said that the protected person was “merely in a state to require being taken care of by others, [and] must be protected against their own actions as well as external injury”. At para 25, he said that he found that KW was not “in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom”.
43. The Court of Appeal overturned Mostyn, J.
44. Consequently, 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 his/her liberty, absent their consent.
45. Mr Jones suggests that the Court needs to apply a modified comparator in this case. In other words, whether a child is subject to confinement that may amount to a deprivation of liberty, one has to ask whether those restrictions are “well in excess” of what a child of his age would have imposed upon them in “normal circumstances”.
46. It is important to note that the comparator is a normal child and not one with QX’s disabilities.
47. I agree with Mr Jones.
HHJ Burrows then went on to consider whether a person holding parental responsibility give consent for that child to be placed in a regime that leads otherwise to his deprivation of liberty. He noted that:
54. In Re D (a child)[2019] UKSC 42the Supreme Court considered the issue of parental consent and deprivation of liberty in respect of children who have reached the age of 16. The answer is that they cannot. That is primarily because the Mental Capacity Act 2005 places people who have reached the age of 16 on a different jurisdiction footing when it comes to the issue of consent, than those under the age of 16.
55. For that reason, the tensions between the Justices of the Supreme Court in Re D, as to the proper application of Cheshire West to children under 16 result in observations that are only obiter. These are outlined and analysed by Mr Jones in his Skeleton, and I need not repeat what he says there in this judgment.
56. One issue that occurred to me that left me uncertain as to the approach of Lieven, J and Keehan, J, concerned the relevance of disability to the exercise of PR. As Keehan, J stated in Trust A v X[2015] EWHC 922 (Fam)at [54]-[57]:
[54] I wish to pay tribute to D’s parents who have throughout acted in what they considered to be in the best interests of their elder son. They have, at all times, paid the closest interest in his care at the hospital and they have worked in co-operation with the clinicians, staff and carers at the unit. They have attended, or at least one of them has attended, the periodic reviews held at the hospital.
[55] When considering the exercise of parental responsibility in this case and whether a decision falls within the zone of parental responsibility, it is inevitable and necessary that I take into account D’s autism and his other diagnosed conditions. I do so because they are important and fundamental factors to take into account when considering his maturity and his ability to make decisions about his day to day life.
[56] An appropriate exercise of parental responsibility in respect of a 5 year old child will differ very considerably from what is or is not an appropriate exercise of parental responsibility in respect of a 15 year old young person.
[57] The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D’s disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.
57. As I suggested to Mr Jones in argument (an argument conducted exclusively with me!), although Keehan, J’s reasoning is clear and very compassionate, it comes close to breaching the anti-discriminatory purpose behind the majority in Cheshire West. If a child of 15 with autism and severe learning disability can be deprived of his liberty on the consent of his parents, but one without autism and severe learning disability cannot, is that not discriminatory against the former child? Does it not deprive the more vulnerable from the protections of Article 5 which are designed to protect the most vulnerable?
58. However, I am persuaded that the line of authority, of which Keehan J and Lieven, J’s decisions are an essential part, is clearly stated in the judgments and based upon a careful consideration of the law, both domestic and ECtHR. They clearly state that parental responsibility can be deployed to consent to an objective deprivation of liberty. To summarise their views, provided the exercise of parental responsibility is for the interest of the child, then it is within the zone of parental responsibility; if it is not, then it is without that zone.
Comment
It is understandable that HHJ Burrows appeared to be somewhat frustrated by the fact that the judgment of the Court of Appeal in Re J has yet to be published. That having been said, all parties before the Court of Appeal had been unanimous (although not for the same reasons) in submitting to the court that it should not pronounce upon the question that came before HHJ Burrows in QX. It is, however, fair to note that some of the parties were submitting (and, it appeared, to a favourable response) that the Court of Appeal should not by such a non-pronouncement suggest that it was endorsing the line of authority including, in particular, the Lincolnshire case (a case where there was agreement between all the parties before the court). An appellate level decision on this point is badly needed.
It is also relatively rare for a more ‘junior’[1] judge to express so baldly the view that the judgment of a more ‘senior’ judge is “plainly wrong” With respect, in the instant case, we entirely agree with HHJ Burrows that it is very difficult to square the decision in the Peterborough case with the authorities. Again, however, an appellate level decision on this point is badly needed so as to be able to resolve this issue one way or another.
[1] Although, as HHJ Burrows was sitting as a High Court judge in QX, his observations were technically made by a judge of so-called coordinate jurisdiction.
