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Home > Judgments

T (A Child) [2018] EWCA Civ 2136

Decision of the President as to the exercise of the inherent jurisdiction of the High Court to make declarations permitting the accommodation of a child in a secure unit (akin to a statutory secure accommodation order under s.25 of the CA 1989) and whether the subject child’s valid consent to such accommodation removed the court’s power to make the declaration.

The appeal related to the exercise of the High Court's inherent jurisdiction to make orders, akin to secure accommodation orders under s.25 of the Children Act 1989, where the statutory system had no capacity [1]. An order under s.25 (and the Welsh equivalent) could only be made in respect of a unit registered as a secure children's home and approved as such by the Secretary of State. At the commencement of his judgment the President expressed grave concerns, stemming from the official figures and anecdotal evidence of advocates and judges, as to the growing disparity between the demand for secure accommodation places and the limited number available, thus requiring increasing numbers of applications under the inherent jurisdiction for authorisation to place children in units not approved by the Secretary of State (see [2] to [5] and [88] to [90]).

The issue in this case was not whether the jurisdiction to make such orders existed (all agreed that it did) but the the manner in which that jurisdiction was to be exercised in circumstances were the subject child was Gillick competent and consented to the proposed care regime. The question came down to whether a child's consent vitiated the court's power to make such an order.

First instance hearings and the ambit of the appeal
The child in this case was subject to a full care order. At the time of the two first instance hearings she was aged 15 but Gillick competent.

At a hearing on 23 January 2018 Mostyn J – notwithstanding misgivings – had been persuaded that, when considering an application to authorise restriction of liberty under the inherent jurisdiction, the court had to be satisfied that the young person was not consenting to the placement [7] and [50]. On reviewing the evidence, he accepted that the child consented to the arrangements, but held that the consent must be "authentic" and "enduring" which, in this case, it was not [51]. Thus he granted the declaration sought by the Local Authority ("LA").

The placement broke down and came back before Mostyn J on 22 March 2018. The child had been moved to a new placement and, again, consented to being there and the substantial restrictions on her liberty [52]. In light of his previous judgment he took the matter shortly and granted a deprivation of liberty declaration, granting the LA the power to accommodate her in the identified unit [53].

The child appealed both orders. Permission was originally granted on the narrow question as to whether Mostyn J had been right to insist upon an "authentic" or "enduring" quality before a child's consent could be valid for the purposes of Article 5 of the ECHR. However, the appeal (as set out above) took on a much broader focus as to the relevance of consent itself, when determining the question.

The statutory scheme
The President's judgment sets out the statutory scheme from [10] to [22]. The judgment refers to s.25 of the Children Act throughout, but also its Welsh equivalent, s.119 of the Social Services and Wellbeing (Wales) Act 2014. Particular elements of note in the statute(s) are pointed out at [14] to [21] but of most relevance to the appeal was the fact that "neither of the statutory schemes for secure accommodation in England and Wales make any reference to a need to establish a lack of consent on the part of the subject of the application." [22]

Article 5 ECHR
The judgment moves to consider Art 5 ECHR and the related case law at [23] to [40].

Article 5 guarantees the right to liberty and security of person, but allows the "detention of a minor by lawful order for the purpose of educational supervision." Thus, as long as it is for the purpose of educational supervision, a s.25 secure accommodation order was not incompatible with a child's convention rights [24].

The seminal domestic authority on deprivation of liberty was that of the Supreme Court in Cheshire West and Chester City Council v P [2014] UKSC 19, which was in part based on the ECtHR judgment in Storck v Germany (Application Number 61603/00) [25].

In Storck the ECtHR had held (para.74) that "a person can only be   considered as being deprived of his or her liberty if, as an additional subjective element, he has not validly consented to the confinement in question." [26]

Baroness Hale in Cheshire West had summarised the essential character of 'deprivation of liberty' at para.37 of her speech and identified three components deriving from Storck, the second of which was "the subjective component of lack of valid consent." [27]

The problem, the President identified, was that this second essential element of deprivation of liberty, that of 'consent', was not a central issue in Cheshire West at all. In Storck the ECtHR had actually also said at para.75 (as to those who volunteer to be detained in hospital):

"It is true that she came to the clinic herself, accompanied by her father. However, the right to liberty is too important in a democratic society for a person to lose the benefit of the Convention protection for the single reason that he may have given himself up to be taken into detention." [28] to [30]

In Buzadji v Moldova (Application Number 23755/07) the Grand Chamber of the ECtHR used this passage from Storck to reject the contention that the applicant's consent (under considerable pressure) to house arrest had thus waived his right to liberty [31].

A domestic decision given much analysis by the President was that of Secretary of State for Justice v MM and Welsh Ministers v PJ [2017] EWCA Civ 194 (see para.23-31 of that decision, set out by the President at [37]). This doubted that a valid consent to a deprivation of liberty could prevent a compulsory confinement being a deprivation of liberty. The Supreme Court have granted permission to appeal but, it seems, on a separate point.

Primary domestic authority relating to consent and the exercise of the inherent jurisdiction to restrict liberty: Local Authority v D
The only other authority on this point was a decision of Keehan J in Local Authority v D [2016] EWHC 3473 (Fam). This is discussed at [41] to [48] of the judgment. Relying on the three limbs of Storck, Keehan J found that the subject child was competent to consent to the regime and his consent to the restrictions in his accommodation unit was valid. The President summarised the decision thus [47]-[48]:

[47]… it is clear that, by his findings, Keehan J held that, by reason of valid consent, C was not, at that time, being deprived of his liberty under Art 5.

[48] It is important to observe from these conclusions, and from the fuller summary of submissions set out in the judgment, that Keehan J did not, and did not purport to, hold that an absence of valid consent was a pre-requisite to the court having jurisdiction to authorise a restriction of liberty of a degree sufficient to engage Art 5. On the facts of the case before him, Keehan J held that C was capable of giving consent and was, in fact, consenting so that it was unnecessary for the court to exercise its inherent jurisdiction at that time.

Is a lack of valid consent a pre-requisite to the exercise of the inherent jurisdiction authorising the restriction of the liberty of a young person?
The appellant, by the second day of the appeal, had conceded that Mostyn J had been wrong to find that he had to be satisfied of the presence of a lack of valid consent in order to make a declaration under the inherent jurisdiction. That did not render the appeal otiose, he argued, as the lack of consent (or otherwise) was an essential element of the balancing exercise as to whether the proposed regime amounted to a deprivation of liberty.

Notwithstanding the concession, from [68] to [82] the President set out his reasoning in support of the proposition that,

"whilst a lack of valid consent may be an element in determining whether a person is deprived of their liberty in any given circumstances for the purposes of Art 5, lack of consent is not a jurisdictional requirement either for making a statutory secure accommodation order or for the High Court to exercise its inherent jurisdiction to authorise a local authority to restrict a young person's liberty."

That conclusion was established on four bases."

First, the consent, or otherwise, of the subject young person was not a relevant factor in the statutory scheme at s.25 of the CA 1989 (see [70] to [74]).

Secondly, there was no domestic authority to the effect that it was necessary to find an absence of valid consent before the court may authorise a local authority to restrict the liberty of a young person (see [75] to [77]). Insofar as Keehan J sought to say otherwise in Local Authority v D he had not sufficiently distinguished between the fact that a secure accommodation order (whether under the statutory scheme or the inherent jurisdiction) did not deprive the subject person of their liberty, it merely authorised the local authority to do so.

Thirdly, to hold otherwise would be to confuse the distinct temporal perspectives of Art 5 and an application for authorisation (see [78]). On the one hand, a determination that a person had or had not been deprived of their liberty in breach of Art 5 was a retrospective evaluation by the court of the individual's current and past circumstances. On the other hand, and in contrast, an application for a secure accommodation order involved a "prospective" perspective on behalf of the court to determine whether circumstances existed to justify the restriction of liberty.

Fourthly, it would mistake the purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation (see [79] to [80]). Two factors underlined the need for an order authorising a LA to place a child in the equivalent of secure accommodation:

To ensure the absence of available secure accommodation did not lead to the structure imposed by s.25 CA being avoided. In other words, neither the LA nor the child could authorise what Parliament had decided only a court could authorise; and

A connection with Art 5. The court's authorisation would be used to deprive the child of their liberty and so the legal requirements of Art 5 would have been fulfilled such that the court will necessarily have determined that the child's welfare justified, or even required, him/her being deprived of their liberty for the purposes of maintaining the placement in the secure accommodation.

The crucial concluding paragraph of the President's judgment is at [81]:

"Drawing these matters together, once it is seen that the court's power under s.25 / s.119 is not dependent upon any question of consent, the difficulties that arose in this case, as it was presented to the judge and, initially, to this court, disappear.  The fact that any consent may or may not be 'valid' or 'enduring' on the day the order is sought, or at any subsequent point, or that a 'valid' consent is later withdrawn, is irrelevant to the scope of the court's powers, whether they are exercised under statute or under the inherent jurisdiction of the High Court.  The existence or absence of consent may be relevant to whether the circumstances will or will not amount to a deprivation of liberty under Art 5.  But that assessment is independent of the decision that the court must make when faced with an application for an order authorising placement in secure accommodation, registered or otherwise."

Thus, although Mostyn J had expressed initial misgivings, he had been drawn into a legally erroneous position by accepting that he needed to find a lack of valid consent before he could grant the Local Authority's application. Once this element had been corrected, the only question was whether Mostyn J had been wrong to grant authorisation to the Local Authority notwithstanding the consent of the child. There was no basis for so holding and the appeal was dismissed.

The conclusion of the judgment highlighted the wider issues also raised at its start, principally the concern that so many young people were being placed in secure accommodation under the inherent jurisdiction in units which, by definition, had not been approved by the Secretary of State under the statutory scheme. This was fundamentally unsatisfactory and, while the High Court considered each case and the evidence as presented, it of course could not conduct an inspection of the units themselves [88] to [90].

Summary by Thomas Dance, barrister, 1 King's Bench Walk

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Case No: B4/2018/0754 + 0349/FAFMF
Neutral Citation Number: [2018] EWCA Civ 2136

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY COURT
MR JUSTICE MOSTYN
CF17C00940

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/10/2018


Before:

SIR ANDREW MCFARLANE
(PRESIDENT OF THE FAMILY DIVISION)
LORD JUSTICE MOYLAN

and
LORD JUSTICE PETER JACKSON
- - - - - - - - - - - - - - - - - - - - -

T (A Child)
- - - - - - - - - - - - - - - - - - - - -

Mark Twomey QC and Alex Laing (instructed by Duncan Lewis Solicitors) for the Appellant
Amanda Weston QC
and Amanda Meusz (instructed by Caerphilly County Borough Council) for the 1st Respondent
Ruth Henke QC
and Harriet Edmondson (instructed by Cameron Jones Hussell and Howe Solicitors) for CAFCASS Cymru
Deirdre Fottrell QC, Siobhan Kelly, Richard Little
and Simon Rowbotham for the Association of Lawyers for Children (Instructed by Royd Withy King)

Hearing dates: Tuesday 10 & Wednesday 11 July 2018
- - - - - - - - - - - - - - - - - - - - -

Judgment
SIR ANDREW McFARLANE (President of the Family Division) :

1. This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act, 1989, s 25 (CA 1989).

2. Official figures published by the Department for Education 1 show that, as at 31 March 2018, there were some 255 places in secure children's homes in England and Wales. These places are taken up either by young people sent there through the criminal justice system or under CA 1989, s 25 secure accommodation orders. As will be explained more fully below, a child who is being looked after by a local authority in England or Wales may only be placed in secure accommodation in a children's home if that home has been approved for such use either by the Secretary of State in England or the Welsh Government in Wales. This court understands that, in recent years, there has been a growing disparity between the number of approved secure children's homes and the greater number of young people who require secure accommodation. As the statutory scheme permits of no exceptions in this regard, where an appropriate secure placement is on offer in a unit which is either not a children's home, or is a children's home that has not been approved for secure accommodation, the relevant local authority has sought approval by an application under the inherent jurisdiction asking for the court's permission to restrict the liberty of the young person concerned under the terms of the regime of the particular unit on offer.

3. Despite the best efforts of CAFCASS Cymru (this being a case concerning a Welsh young person), it has not been possible to obtain firm data as to the apparent disparity between the demand for secure accommodation places and the limited number available, nor of the number of applications under the inherent jurisdiction in England and Wales to restrict the liberty of a young person outside the statutory scheme. The data published by the Department for Education referred to in paragraph 2 simply measures the occupancy rate within the limited number of approved secure places without attempting to record the level of demand.

4. This court has been told by counsel, on a broad anecdotal basis, that each local authority may, on average, make an application for a restricted liberty declaration under the inherent jurisdiction in one case each year. If that is so then, across England and Wales, the total number of such applications would be in the region of 150 per year. The understanding, again anecdotal, of judges hearing these cases is that that figure is probably a very substantial under-estimate; for example, in one week recently a medium-size court outside London heard five such applications. Again, by way of example, Mr Justice Holman described the situation in one week in the High Court in 2017 with a tone of wholly appropriate concern in A Local Authority v AT and FE [2017] EWHC 2458 (Fam):

"5. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction.  This week I have been sitting here at the Royal Courts of Justice as the applications judge.  This case is about the sixth case this week in which I have been asked to exercise the inherent jurisdiction of the High Court to authorise the deprivation of liberty of a child in similar circumstances.  There are two yet further similar cases listed before me today.

6. Quite frankly, the High Court sitting here at the Royal Courts of Justice is not an appropriate resource for orders of this kind, and I personally have been almost drowned out by these applications this week.  Further, although I have no time properly to consider this today, I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children.  This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division."

5. It is plainly a matter for concern that so many applications are being made to place children in secure accommodation outside the statutory scheme laid down by Parliament. The concern is not so much because of the pressure that this places on the court system, or the fact that local authorities have to engage in a more costly court process; the concern is that young people are being placed in units which, by definition, have not been approved as secure placements by the Secretary of State when that approval has been stipulated as a pre-condition by Parliament.

6. In the present appeal, no party takes issue with the use of the inherent jurisdiction to meet the needs of the group of vulnerable young people, who would otherwise be the subject of a CA 1989, s 25 secure accommodation order, but who fall outside the statutory scheme solely as a result of the lack of available approved secure children's homes. Indeed, as a primary justification for the continued use of the inherent jurisdiction with respect to children in modern times is to provide protection for young people when their welfare demands it, it would be difficult to argue against the assumption of jurisdiction in such cases. The issue in the present appeal, therefore, relates to the manner in which that jurisdiction is to be exercised and, in particular, the approach to be taken as a matter of law and in relation to the exercise of the court's discretion when, as here, the young person is Gillick competent and consents to the proposed care regime, notwithstanding that it significantly restricts her liberty to a degree that would otherwise require authorisation by a CA 1989, s 25 order if the placement was in a unit registered as a secure children's home. The young person at the centre of the case is subject to a full care order. Her 16th birthday was in May 2018 and she was therefore still aged 15 years at the time of the two first instance hearings that are the subject of appeal.

7. The matter came before Mr Justice Mostyn on 23 January 2018 and, following a change of placement, on 22 March 2018. Despite, in my view, well-placed misgivings to the contrary, the judge was persuaded that, when considering an application to authorise restriction of liberty under the inherent jurisdiction, the court had to be satisfied that the young person was not consenting to the placement.

8. Having reviewed the available evidence, and whilst accepting that, on the day in court, the young person was fully consenting to the restrictive arrangements, Mostyn J held that any such consent "must be an authentic consent, and must be an enduring consent" meaning that the court was required to evaluate "whether the consent is going to endure in the short to medium term, or whether it is merely evanescent consent." On the facts the judge held that the young person's stated consent fell short of establishing such an "enduring" quality. He therefore, having considered the other circumstances of the case, granted the declaration sought by the local authority.

9. The focus of the Appellant's pleaded appeal is to challenge the need for an "enduring" quality of consent, as identified by the judge. However, as I shall describe, during the appeal hearing this court has questioned the underlying assumption that it is necessary, as a matter of jurisdiction and as a pre-condition, for the court to establish a lack of valid consent before it may consider making a declaration authorising restriction of liberty in this cohort of cases which would otherwise fall to be dealt with within the CA 1989, s 25 statutory scheme.

The Statutory Scheme

10. In order to understand and inform consideration of the role of the inherent jurisdiction in these cases, it is necessary to set out the basic structure of the statutory scheme that would otherwise apply if sufficient secure places were available.

11. Children Act 1989, s 25 which is headed "Use of Accommodation for Restricting Liberty" states:

"(1) Subject to the following provisions of this section, a child who is being looked after by a local authority in England or Wales may not be placed, and, if placed, may not be kept, in accommodation in England or Scotland provided for the purpose of restricting liberty ("secure accommodation") unless it appears—

(a) that—

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds, he is likely to suffer significant harm; or

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

(2) The Secretary of State may by regulations—

(a) specify a maximum period—

(i) beyond which a child may not be kept in secure accommodation in England or Scotland without the authority of the court; and

(ii) for which the court may authorise a child to be kept in secure accommodation in England or Scotland;

(b) empower the court from time to time to authorise a child to be kept in secure accommodation in England or Scotland for such further period as the regulations may specify; and

(c) provide that applications to the court under this section shall be made only by local authorities in England or Wales.

(3) It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case.

(4) If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.

(5) On any adjournment of the hearing of an application under this section, a court may make an interim order permitting the child to be kept during the period of the adjournment in secure accommodation.

(5A) Where a local authority in England or Wales are authorised under this section to keep a child in secure accommodation in Scotland, the person in charge of the accommodation may restrict the child's liberty to the extent that the person considers appropriate, having regard to the terms of any order made by a court under this section.

(6) No court shall exercise the powers conferred by this section in respect of a child who is not legally represented in that court unless, having been informed of his right to apply for the provision of representation under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and having had the opportunity to do so, he refused or failed to apply.

(7) The Secretary of State may by regulations provide that—

(a) this section shall or shall not apply to any description of children specified in the regulations;

(b) this section shall have effect in relation to children of a description specified in the regulations subject to such modifications as may be so specified;

(c) such other provisions as may be so specified shall have effect for the purpose of determining whether a child of a description specified in the regulations may be placed or kept in secure accommodation in England or Scotland.

(d) a child may only be placed in secure accommodation that is of a description specified in the regulations (and the description may in particular be framed by reference to whether the accommodation, or the person providing it, has been approved by the Secretary of State or the Scottish Ministers).

(8) The giving of an authorisation under this section shall not prejudice any power of any court in England and Wales or Scotland to give directions relating to the child to whom the authorisation relates.

(8A) Sections 168 and 169(1) to (4) of the Children's Hearings (Scotland) Act 2011 (asp 1) (enforcement and absconding) apply in relation to an order under subsection (4) above as they apply in relation to the orders mentioned in section 168(3) or 169(1)(a) of that Act.

(9) This section is subject to section 20(8)."

12. CA 1989, s 25 largely re-enacts provisions that had first appeared in the Child Care Act 1980.

13. With respect to a Welsh local authority, the regulation of social care having been devolved to the Welsh Government, the relevant Welsh statutory measure relating to secure accommodation is Social Services and Wellbeing (Wales) Act 2014, s 119 ('SSW(W)A 2014') which, save for small variations relating to the different geographical jurisdiction, is in the same terms as CA 1989, s 25.

14. A number of features of CA 1989, s 25 and SSW(W)A 2014, s 119 are of note. Firstly, a young person may not be placed, or kept, in accommodation provided for the purpose of restricting liberty unless one or other of two circumstances are established:

a) A history of absconding, a likelihood of future absconding and, if he did abscond, he is likely to suffer significant harm; or

b) He is likely to injure himself or other persons if kept in any other description of accommodation.

15. A local authority's ability to keep a young person in secure accommodation "without the authority of the court" is limited by regulations: see s.25(2)(a).

16. The ambit within which it is possible, if at all, for the court to exercise discretion is limited as, under s 25(3) / s 119(3), the court must determine whether any of the relevant criteria for keeping a child in secure accommodation are satisfied and, if so (CA 1989, s 25(4)) the court "shall", or "must" (SSW(W)A 2014, s 119(4)), make a secure accommodation order (see Re M (Secure Accommodation) [1995] Fam 108).

17. Under CA 1989, s 25(6) or SSW(W)A 2014, s 119(6) no court is to exercise the powers under s 25 or s 119 in respect of a young person who is not legally represented, unless certain other circumstances are satisfied.

18. In any particular case, it may be that a court in England is asked to authorise the placement of a child in a secure accommodation in Wales, or vice versa. It is the location of the accommodation which determines which of CA 1989, s 25 or SSW(W)A 2014, s119 applies, irrespective of whether the court is in England or Wales. The text of CA 1989, s 25(1) is set out above. SSW(W)A 2014, s119(1) is as follows:

"(1) Subject to the following provisions of this section, a child who is being looked after by a local authority or a local authority in England may not be placed, and if placed, may not be kept, in accommodation in Wales provided for the purpose of restricting liberty ("secure accommodation") unless it appears—

(a) that the child—

(i) has a history of absconding and is likely to abscond from any other description of accommodation, and

(ii) is likely to suffer significant harm if the child absconds, or

(b) that if the child is kept in any other description of accommodation, he or she is likely to injure himself or herself or other persons."

19. The statutory provision which restricts placement only in children's homes which are approved by the relevant authority appears in the regulations.

20. The Children (Secure Accommodation) Regulations 1991, which do not apply to Wales (Regulation 1A), provide, at Reg 3, as follows:

"3 (i) Accommodation in a children's home shall not be used as secure accommodation unless:

a) In the case of accommodation in England, it has been approved by the Secretary of State for that use;

b) In the case of accommodation in Scotland, it is provided by a service that has been approved by the Scottish Ministers under Paragraph 6(b) of Schedule 12 of the Public Services Reform (Scotland) Act 2010.

c) Approval by the Secretary of State under Paragraph 1(i) may be given subject to any terms or conditions that the Secretary of State thinks fit."

21. The Children (Secure Accommodation) (Wales) Regulations 2015 (as amended by the Children (Secure Accommodation) (Wales) (Amendment) Regulations 2018/391) provide at Reg 8 as follows:

"8. A local authority may only place a looked after child in secure accommodation:

a)  provided in Wales by a secure accommodation service in respect of which the provider is registered,

b)  In a home in England which is registered under Part 2 of the Care Standards Act 2000 as a children's home providing accommodation for the purpose if restricting liberty, or

c)  provided by a secure accommodation service in Scotland."

22. In the context of this appeal, it is of particular note that neither of the statutory schemes for secure accommodation in England and Wales make any reference to a need to establish a lack of consent on the part of the subject of the application.


ECHR, Article 5: Deprivation of Liberty

23. Under the European Convention on Human Rights, Article 5- "Right to liberty and security"- the Convention requires that:

"i)  Everyone has the right to liberty and security of person.

ii) No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(d) The detention of a minor by lawful order for the purpose of educational supervision…"

24. Provided that the deprivation of a young person's liberty is for the purpose of educational supervision within Art 5(1)(d), a secure accommodation order made under CA 1989, s 25, whilst authorising a deprivation of liberty, will not be incompatible with the young person's convention rights (Re K (Secure Accommodation Order: Right to Liberty) [2001] 1 FLR 536).

25. In recent years, following the implementation of the Mental Capacity Act 2005 ("MCA 2005"), courts have rightly been required to focus on the need to protect the rights of those who may be subject to the deprivation of liberty ("DOLS") provisions made under that legislation. The seminal domestic authority on deprivation of liberty under the MCA 2005 is the decision of the Supreme Court in Cheshire West and Chester City Council v P [2014] UKSC 19.

26. The decision in Cheshire West was in part based upon the judgment of the ECtHR in Storck v Germany (Application number 61603/00) delivered on 16 June 2005. The facts of Storck concerned the repeated placement of an individual in psychiatric institutions over a period of many years, commencing at a time when she was 15 years old. However, the complaint before the court concerned the period after the applicant had reached her majority. In the course of its determination the ECtHR considered the necessary elements required to establish a breach of Art 5 (1) and held (paragraph 74) as follows:

"However, the notion of deprivation of liberty within the meaning of Article 5 (1) not only comprises the objective element of a person's confinement to a certain limited place for a not negligible period of time. A person can only be considered of being deprived of his or her liberty if, as an additional subjective element, he has not validly consented to the confinement in question."

27. When giving the lead majority judgment in Cheshire West, Baroness Hale SCJ summarised the essential character of "deprivation of liberty" at paragraph 37:

"The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev v Bulgaria [2002] 55 EHRR 596 paras 117 and 120, as follows:

The objective component of confinement in a particular restricted place for a not negligible length of time;

The subjective component of lack of valid consent;

The attribution of responsibility to the state."

28. The second essential element of deprivation of liberty identified in Storck, that of 'consent', was not a central issue in Cheshire West and has not featured significantly in any later cases relating to the MCA 2005 DOLS provisions. Normally, the focus in such cases is upon whether or not the particular circumstances are sufficient to engage the objective component, (a), of confinement in a particular restricted place for a not negligible period of time. But, as Storck and Cheshire West clearly hold, before an individual can be said to be deprived of their liberty in breach of Art 5, it is necessary to establish that there is no valid consent to the particular restricted regime.

29. Consent was, however, considered in the earlier ECtHR decision of De Wilde, Ooms and Versyp (Vagrancy) v Belgium (Applications 2832/66, 2835/66 and 2899/66) (1970) 1 EHRR 373. In De Wilde each of the three applicants had surrendered themselves to the police; in each case the government argued that such 'voluntary reporting' could not amount to deprivation of liberty under Art 5 because of the apparent consent of individual. The ECtHR dismissed this line of argument at paragraph 65 of its judgment:

"65. The Court is not persuaded by this line of argument. Temporary distress or misery may drive a person to give himself up to the police to be detained. This does not necessarily mean that the person so asking is in a state of vagrancy and even less that he is a professional beggar or that his state of vagrancy results from one of the circumstances - idleness, drunkenness or immorality - which, under Section 13 of the Belgian Act of 1891, may entail a more severe measure of detention.

Insofar as the wishes of the applicants were taken into account, they cannot in any event remove or disguise the mandatory, as opposed to contractual, character of the decisions complained of; this mandatory character comes out unambiguously in the legal texts (Sections 8, 13, 15, 16 and 18 of the 1891 Act) and in the documents before the Court.

Finally and above all, the right to liberty is too important in a "democratic society" within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention might violate Article 5 (art. 5) even although the person concerned might have agreed to it. When the matter is one which concerns ordre public within the Council of Europe, a scrupulous supervision by the organs of the Convention of all measures capable of violating the rights and freedoms which it guarantees is necessary in every case. Furthermore, Section 12 of the 1891 Act acknowledges the need for such supervision at national level: it obliges the magistrates to "ascertain the identity, age, physical and mental state and manner of life of persons brought before the police court for vagrancy". Nor does the fact that the applicants "reported voluntarily" in any way relieve the Court of its duty to see whether there has been a violation of the Convention."

30. De Wilde preceded the decision in Storck by a decade, but, although the judgment in Storck identified a lack of valid consent as being one of the three essential elements in establishing a breach of Art 5, the court in Storck held to the basic premise in De Wilde relating to those who volunteer to be detained:

"75. Having regard to the national courts' related findings of fact and to the factors that are undisputed between the parties, the Court observes that the applicant had attained the age of majority at the time of her admission to the clinic and had not been placed under guardianship. Therefore, she was considered to have the capacity to consent or object to her admission and treatment in hospital. It is undisputed that she did not sign the clinic's admission form prepared on the day of her arrival. It is true that she came to the clinic herself, accompanied by her father. However, the right to liberty is too important in a democratic society for a person to lose the benefit of the Convention protection for the single reason that he may have given himself up to be taken into detention (see De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, p. 36, § 65, and H.L. v. the United Kingdom, cited above, § 90)."

31. More recently in Buzadji v Moldova (App No 23755/07) the Grand Chamber of the ECtHR considered the question of house arrest, following an extensive period in which the applicant had been remanded in custody, where, it was asserted by the Moldovan government, that the applicant had asked to be placed under house arrest. Whilst the Grand Chamber's primary focus was upon wider issues of pre-trial detention which are not relevant to the present appeal, the issue of apparent consent to detention in the context of Art 5 was considered between paragraphs 106 and 109:

"106. One issue raised by the Government (and which has been joined to the merits, see paragraph 71 above) was the fact that the applicant himself had asked to be placed under house arrest and had not challenged the court decisions ordering this measure. This raises an important question, namely whether the applicant had waived his right to liberty.

107. In Storck v. Germany (no. 61603/00, § 75, ECHR 2005-V) the Court held that the right to liberty is too important in a "democratic society" within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the sole reason that he gives himself up to be taken into detention. Detention might violate Article 5 even though the person concerned might have agreed to it (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12).

108. In view of the Government's submission to the effect that it was the applicant himself who had asked to be placed under house arrest (see paragraph 82 above), the Court notes that in the present case there was a clear element of coercion in the application of this type of measure. In particular, it appears clearly from the facts of the case that the idea behind the applicant's seeking to be placed in house arrest was to avoid the continuation of his detention in custody after the courts had dismissed his habeas corpus requests on numerous occasions. It also transpires that his state of health considerably deteriorated during his remand in custody and that he was ready to make concessions in order to put an end to it (see paragraphs 14, 24 and 29 above). This is understandable behaviour for a person who had previously suffered a heart attack and a cerebral stroke and who was seeing his health deteriorating. In the Court's view, the applicant was under a clear state of duress when he was placed under house arrest. In such circumstances, one could not reasonably expect the applicant to challenge the court decisions ordering his house arrest.

109. In view of the above, the Court is not prepared to accept that the applicant's attitude to his house arrest and omission to challenge the measure amounted to a waiver of his right to liberty."

32. In Buzadji the totality of the applicant's house arrest was held to be in breach of Art 5.

33. The relevance of apparent consent to what would otherwise be a deprivation of liberty in breach of Art 5 has been considered in two domestic decisions: The Secretary of State of Justice v RB [2010] UKUT 545 (AAC) [Carnworth LJ, HHJ Sycamore and UTJ Rowland] and Secretary of State for Justice v MM and Welsh Ministers v PJ [2017] EWCA Civ 194 ['MM and PJ'].

34. At paragraph 57 onwards in RB the Upper Tribunal considered whether the circumstances of the case involved a deprivation of liberty where a long-term patient held under a Hospital Order imposed by the criminal court had been transferred to a less restrictive regime:

"60. The tribunal raised a separate point that RB's "valid and meaningful consent to a move to [the care home] (a move which would manifestly be in his interests)" would prevent the deprivation of his liberty amounting to a breach of Article 5. It relied on comments in Stork, para 73 that:

"...A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question..."

61. We cannot accept this line of reasoning. (As already noted, a similar line of argument was rejected by Collins J in G [2004] EWHC 2193). In Storck the Court found that the Appellant had for part of her stay in a psychiatric institution (from January to April 1981) come to the clinic voluntarily, at a time when she could be assumed to have had capacity and had stayed there voluntarily owing to her need for psychiatric treatment (see paragraphs 122 – 128).

62. By contrast, in the present case it cannot be suggested that RB consented to his initial psychiatric detention. He has at all material times been detained by virtue of an order imposed by the Court under the Mental Health Act 1983. He has never been offered the option of absolute discharge nor is there any prospect of such an offer being made in the foreseeable future. The only alternative presented to RB is to agree to a continuation of his detention within his present regime or to agree the alternative regime contemplated in the Tribunal's order. This very limited choice cannot be equated to a free and unfettered consent to psychiatric detention or to the conditions proposed by the Tribunal. A person's consent to alternative conditions of his detention regime is not the same as his consent to the existence the regime itself."

35. On appeal in Secretary of State for Justice v RB [2011] EWCA Civ 1608, the Court of Appeal [Maurice Kay, Arden and Moses LJJ] allowed an appeal from the UT on grounds unrelated to the obiter observations at paragraphs 60 to 62 which were not referred to in the court's judgments.

36. The case of MM and PJ justifies careful consideration in the context of the present appeal and it is to be noted that the Supreme Court has now heard argument on appeal in the case of MM and the judgments in that appeal are currently awaited.

37. The court in MM and PJ [Sir James Munby P, Gloster and Ryder LJJ] heard separate appeals in which two mental health patients (one detained under an order of the criminal court and the other detained in a non-criminal context) were being moved to less restrictive regimes, but regimes, in each case, which still deprived the patient of their liberty. The central focus of the two appeals was upon the powers of the relevant appeal tribunals and, as such, is of no relevance to this present appeal. At paragraphs 23 onwards of the judgment of the court, in the case of MM, consideration was, however, given to 'the effect of consent':

23. "There are three elements to a deprivation of liberty within the meaning of article 5 ECHR.  They are: (i) an objective component of confinement in a particular restricted place for a non-negligible period of time; (ii) the subjective component of lack of valid consent; and (iii) the attribution of responsibility to the state: Cheshire West at [37] per Baroness Hale of Richmond.  The 'acid test' for an objective deprivation of liberty is that the individual is subject to constant supervision and control and is not free to leave: [49] supra.

24. As the Mental Health Act Code of Practice reminds us, there is a danger in mental health specialist care that "the threat of detention must not be used to coerce a patient to consent to admission to hospital or to treatment".  The Code goes on to suggest that the threat of coercion "is likely to invalidate any apparent consent" (see §14.17 of the Code): we agree.

25. In any event, even if the patient's consent is valid, what happens if the patient changes his or her mind?  It would be contrary to public policy and the concept of autonomy to restrict the circumstances in which a patient who has capacity can change his mind is able to do so (see, for example: HE v A Hospital Trust [2003] EWHC 1017 (Fam) per Munby J at [37] to [39]).  Furthermore, if it is open to the patient to withdraw consent at any time, the deprivation of liberty would then become unlawful, undermining the protective purpose of the Act's provisions.

26. Whether a patient has a free choice to leave is a question that goes not just to the objective component of confinement but also to the subjective validity of consent (see, for example:  Osypenko v Ukraine Application No: 4634/04 at [48] to [49] and I.I v Bulgaria Application No: 44082/98 at [87]).

27. Further, both domestic and Convention jurisprudence strongly doubt the hypothesis that valid consent can prevent a compulsory confinement from being a deprivation of liberty.  In R (G) v Mental Health Review Tribunal [2004] EWHC 2193 (Admin) Collins J held at [23] that:

"I do not think that consent to continuing deprivation of liberty can confer jurisdiction on a tribunal.  A deprivation remains since the consent cannot convert [it] into something else."

28. We agree with that principle which is equally firmly described in Strasbourg jurisprudence.  Where conditions amounting to a deprivation of liberty are compulsorily imposed by law, the agreement of an individual cannot prevent that compulsory confinement from constituting a deprivation of liberty: De Wilde and Ors v Belgium (1979-80) 1 EHRR 373 at [64] and [65].  We need go no further than to express our respectful agreement with the analysis of Convention jurisprudence set out in RB v Secretary of State for Justice [2011] EWCA Civ 1608, in particular at [3] to [14], inclusive.

29. In any event, conditions have to be considered by reference to their real not technical effect.  What is the concrete situation of the patient?  The question of enforceability, which was raised in submissions by reference to the decision of Charles J in KC, does not assist in that analysis.  A condition of residence in itself is not a deprivation of liberty.  The most common condition that might be a deprivation of liberty is continuous supervision including the lack of availability of any unescorted leave. Even if the question of consent were to be hypothetically relevant, the patient cannot consent in any irrevocable way.  He cannot be taken to have waived or have had his right to withdraw his consent removed.  There is no scope for consent in a case such as this.

30. Accordingly, whether a capacitated patient can consent to a deprivation of liberty is not a decisive issue.  A purported consent, even if valid, could arguably go no further than to provide for the subjective element of the article 5 test, it cannot create in the FtT / MHRTW a jurisdiction it does not possess to impose a condition that is an objective deprivation of liberty.  Article 5 ECHR does not provide any free-standing jurisdiction in a tribunal to impose conditions that have the effect of authorising a deprivation of liberty.  A purported consent would also be ineffective in fact.  It cannot be an irrevocable consent and it could not act to bind the patient or waive his right to withdraw or rely on, inter alia, articles 5 and 6 ECHR at any time thereafter.  A deprivation of liberty is an imposition by the state so that examples of enforceable agreements in other contexts are not analogous.

31. If the FtT/MHRTW is satisfied that a patient will validly consent to supervision in the community and that will protect both the patient and the public then it is open to the tribunal to grant an absolute discharge or a conditional discharge on conditions that do not involve an objective deprivation of liberty.  The tribunal is well used to identifying cases where there will or will not be compliance with a necessary regime of treatment."

38. I see no ground for disagreement with any part of those paragraphs of this court's judgment in MM and PJ, subject, of course, to the pending judgments of the Supreme Court on the appeal in MM's case.

39. Having set out the relevant aspects of the Strasbourg and domestic law relating to consent and deprivation of liberty, it is necessary to look at the limited caselaw on the issue in the context of orders authorising the restriction of liberty made under the inherent jurisdiction.

40. Apart from the case presently under appeal, the primary authority relating to consent and the exercise of the inherent jurisdiction to restrict liberty is Local Authority v D [2016] EWHC 3473 (Fam).


Local Authority v D [2016] EWHC 3473 (Fam)

41. Local Authority v D [2016] EWHC 3473 (Fam) concerned a 15-year-old young man, C, who was the subject of an application by a local authority under CA 1989, s 100 to deprive him of his liberty at a residential unit. C was the subject of a full care order and, at the time of the application, he was already resident at the unit and subject to a regime which, the judge held, but for his consent, would involve a deprivation of liberty under Art 5.

42. C, as the judge found, was Gillick competent to decide whether to consent to the regime and was in fact in agreement with the imposition of the restrictions under which he had been living in the unit.

43. Keehan J summarised the issues before the court at paragraph 9 of his judgment:

"Before finding that C is deprived of his liberty in the residential unit I must be satisfied, on the basis of the test propounded in Storck v. Germany [2005] EHRC 406, that:

a. Limb one of Storck is established, namely that C is confined to a certain limited place for a not negligible length of time;

b. He cannot in law consent to his confinement or he does not, as matter of fact, consent of his confinement; and

c. The fact of his confinement is imputable to the actions of the state.

There is no dispute that limb three of Storck is satisfied on the facts of this case."

44. Before Keehan J, both the local authority and the Official Solicitor (representing C's mother who lacked litigation capacity) submitted that, whilst a person can consent to what would otherwise be a deprivation of liberty under Art 5, C's behaviour and position before the court did not amount to valid consent.

45. On behalf of C it was submitted that his engagement with the regime to date and his acceptance that the restrictions were necessary for his own protection and for the protection of others supported a conclusion that C was consenting to the continuation of these restrictions.

46. Keehan J came to the following conclusions:

a) That, absent a valid consent, C would be deprived of his liberty [paragraph 51];

b) That C was Gillick competent, had sufficient understanding of the information relevant to the decision to give valid consent to the continuation of the restrictive regime and was, therefore, capable in law of consenting to his confinement in the unit [paragraphs 54 and 55];

c) That, on the facts, C was consenting to his confinement in the unit [paragraph 56];

d) The fact that his consent may be withdrawn at some point in the future did not negate the validity of his consent at the date of the hearing [paragraph 58];

e) That there was a welfare benefit to C in feeling empowered to make this decision (as opposed to having a regime imposed upon him by court order) [paragraph 60];

f) That, although the use of the inherent jurisdiction to restrict liberty was, if established procedural requirements are satisfied, compliant with Art 5, in the circumstances, there was no need for the court to exercise its inherent jurisdiction [paragraphs 62 to 65].

47. Keehan J summarised his overall conclusion at paragraph 69 as follows:

"Nevertheless, I am satisfied that:

a. Limb one of Storck is established;

b. C can in law consent to his confinement;

c. C does in fact validly consent to the same; and

d. therefore the issue of the court authorising his confinement under the inherent jurisdiction did not arise."

Although he did not expressly refer during his conclusion to the issues that had been summarised at paragraph 9 of his judgment [see paragraph 43 above], it is clear that, by his findings, Keehan J held that, by reason of valid consent, C was not, at that time, being deprived of his liberty under Art 5.

48. It is important to observe from these conclusions, and from the fuller summary of submissions set out in the judgment, that Keehan J did not, and did not purport to, hold that an absence of valid consent was a pre-requisite to the court having jurisdiction to authorise a restriction of liberty of a degree sufficient to engage Art 5. On the facts of the case before him, Keehan J held that C was capable of giving consent and was, in fact, consenting so that it was unnecessary for the court to exercise its inherent jurisdiction at that time.


Valid Consent: the judge's approach in the present case
49. In the first judgment in this case given ex tempore on 23rd January 2018, Mostyn J, having reviewed the basic elements of the statutory scheme for secure accommodation under CA 1989, s 25, and having observed that the inherent jurisdiction was available for consideration in cases that may fall outside the statutory scheme, observed that it was important:

"that, so far as is practicably achievable, that mirror orders made under the inherent jurisdiction conform as much as possible with the prescriptions within section 25 and its subsidiary regulations. Were the court to devise an alternative scheme that deviated significantly from the terms of section 25 (or its Welsh equivalent) there would, as I have said, be a danger of criticism of judicial activism in conflict with a Parliamentary directive."

Although it is not necessary to do so in order to determine this appeal, I would agree with Mostyn J that it is important for the High Court to adhere as closely as possible to the statutory scheme in these cases: this very point was also made by Wall J in Re C [1997] 2 FLR 180.

50. At paragraph 6 of his judgment, Mostyn J reviewed the approach taken to secure accommodation orders in the context of the ECHR and, in particular, the judgment in Storck to the effect that in order for Art 5 to be engaged there must be a non-consensual detention at the behest of the state. He then turned specifically to the element of consent at paragraph 7:

"7. The second limb of the formulation requires there to be a lack of valid consent. An interesting question arises, which is relevant to the decision that I have to make, as to whether this requirement has to be demonstrated when an application is determined under section 25 of the Children Act 1989. The notes to the Red Book state that the consent of a young person to the making of a secure accommodation order is not required. The citation for that is Re W (a child) [2016] EWCA (Civ) 804. But that does not really answer the question that I am now posing, which is that if the young person who is the subject of an application under section 25 consents to the application, can the order in fact validly be made? Because in order for there to be a deprivation of liberty, there must be, as the Strasbourg Court has said, present the subjective component of lack of valid consent. So one can see a curious catch-22 arising, which is where the local authority consider that a child should be placed in secure accommodation, and the child through his representatives realises that the case against him or her is very strong, if not overwhelming, and consents to it, that the act of consent in fact prevents the order being made. That cannot be an acceptable construction of the provision, in my respectful opinion, and it is for this reason that consent, or lack of consent, never features in applications under section 25, and that, as Miss Edmondson has eloquently explained, in many cases the applications for these orders are disposed of by consent.

8. So this gives rise to the question whether there must be demonstrated lack of valid consent if the application is being made under the alternative mirror procedure pursuant to the inherent jurisdiction. If the issue of lack of consent is not a requirement under the statutory procedure, and if, as I have suggested, it is important that the alternative mirror procedure conforms as much as possible to the statutory procedure, it is hard to see why there should be an imputation of the lack of consent requirement into the alternative procedure. However, I am persuaded by Mr Laing that all the authorities under the alternative procedure have emphasised strict compliance with the Strasbourg jurisprudence on article 5. Therefore, I do accept, even though this may appear anomalous, that where the court is considering secure accommodation pursuant to the alternative procedure, that it does have to be satisfied of the presence of a lack of valid consent. It may well be that in a case in which an application is being made under section 25 (or under its Welsh sibling) the court will have to consider the point that I have spent some time describing, and whether there does in fact, since the arrival of the Strasbourg jurisprudence to which I have referred, lie latently within section 25 an insoluble catch-22.

9. So I proceed on the basis that in order for the order to be made today, the 3 components have to be present. There is no dispute as to the first and the third. The question is as to whether the second is demonstrated in circumstances where there is active consent by the child with whom I am concerned to the placement in question.

10. This matter was considered by Keehan J in the decision of A local authority v D [2016] EWHC 3473 (Fam) (otherwise known as Re C). It has to be said that in that case the conduct of the children concerned was very much of a lower level of concern to that which I am concerned with. However, Keehan J decided clearly that the child in question could give a valid consent. Moreover, he decided at paragraph 58 that once he was satisfied that valid consent has been given, the fact that he may withdraw that consent at some point in the near future does not negate the valid consent he gave nor does it negate the legal consequences of that consent. I have considered this judgment carefully, and I take from it that the concept of consent does not necessarily mean hearing the words "I do". There must be an authentic consent, and this much is accepted by Mr Laing who represents the child. As he put it, he must say it and mean it. The consent in question must be an authentic consent, and it must be an enduring consent. This means that the court will have to make a judgment as to whether the consent is going to endure in the short to medium term, or whether it is a merely evanescent consent. If the court is satisfied by the history that the consent in question is merely evanescent and is not likely to endure, then, in my judgment, that is not relevant consent for the purposes for which I am concerned. This is, to my mind, to state the obvious. So the court can only make the order in question if it is satisfied that there is a lack of valid consent in the way that I have described it: authentic, and likely to endure."

51. On the facts of the case, Mostyn J went on to hold that the young person's expression of consent before the court was insufficient to satisfy the standard that he had described at paragraph 10. Being satisfied that the other requirements, in line with s 25, were satisfied, the judge went on to make an order authorising the local authority to maintain the restrictive placement regime. Permission to appeal against that order was granted by Peter Jackson LJ on 19th March.

52. The case, however, came back before Mostyn J on 22nd March, on which occasion the court was told that the placement at the unit authorised at the January hearing had completely broken down in early March and the young person had been moved to a new placement ['the second placement'] where she was settled and where, once again, she was said to consent to substantial restrictions on her liberty. The local authority sought an amendment to the earlier order to authorise restriction of liberty at the second placement.

53. The sole issue before the court was, once again, whether the young person 'authentically consents', to adopt the judge's phrase. In the light of his previous judgment and the subsequent history the judge was justified in taking the matter shortly [at paragraphs 8 and 9]:

"On the last occasion in my judgment I held that the consent, as I have said, can only be found to exist where it is authentic and enduring. That I was correct in that determination is demonstrated by the subsequent events. Notwithstanding that the child on the last occasion expressed to me, seemingly, authentic consent, subsequent events show that within a relatively short period of time, that consent was not genuinely expressed because the events which I have set out occurred.

For these reasons, I am satisfied once again, even more satisfied than I was on the previous occasion, that the deprivation of liberty declaration should be given, granting the local authority the powers and protections which I have mentioned in my previous judgment."

54. Subsequently permission to appeal was also given with respect to the order of 22nd March. Both appeals have been heard together.


The Appeal Hearing

55. The initial focus of the appeal was narrow and simply concerned the judge's insistence upon an 'authentic' or 'enduring' quality before a young person's consent could be held to be valid for the purposes of Art 5. When the matter came on for hearing before a two-judge court (McFarlane and Moylan LJJ) on 23rd May we expressed concern that there may be wider issues requiring consideration. The matter was therefore adjourned to a three-judge court and invitations were advanced to CAFCASS Cymru and the Welsh Government in the hope that these agencies might be able to assist the court with submissions. In addition, the Association of Lawyers for Children applied for and were granted Intervener status in order to file written submissions. We are most grateful to CAFCASS Cymru, the Welsh Government and the ALC for their assistance.

56. The appellant young person, who is represented before this court by Mr Mark Twomey QC, leading Mr Alex Laing, who appeared below, primarily submits that the judge was correct in holding that a restriction of liberty authorisation may not be given where the person concerned validly consents to the proposed regime. Secondly, it is submitted that by requiring an 'enduring' quality to such consent, Mostyn J was adding an impermissible gloss to the evaluation of any proffered consent.

57. In promoting the Appellant's case Mr Twomey's and Mr Laing's central submission is that the effect of the young person's consent is that she is not deprived of her liberty as the second Storck component is not met. Having drawn the court's attention to the pending Supreme Court decision in MM and PJ, counsel accept that, on first reading, that decision and the earlier authorities upon which it is based, might be taken as supporting the proposition that a person's consent does not prevent orders being made to authorise that she be deprived of her liberty. The submission is, however made, that these cases are to be distinguished and construed narrowly as applying only within the context of the Mental Health Act 1983 and only concerned with the jurisdiction of the relevant statutory appeal tribunals.

58. In the course of oral submissions, Mr Twomey's initial position was to assert that the absence of valid consent was a 'legal requirement' before a court could authorise deprivation of liberty to a degree that would otherwise breach Art 5 and if a young person is positively consenting then the court does not have jurisdiction to make an order authorising deprivation of liberty.

59. At the time that this submission was made it appeared adventurous, asserting, as it did, that the court's jurisdiction was wholly dependent on the consent, or otherwise, of one of the parties. It is fair to say that Mr Twomey received a significant amount of judicial 'push-back' from all three members of the court.  When the hearing resumed after an overnight adjournment Mr Twomey withdrew that primary submission and recast his case on the following basis:

a) It is accepted that the court had jurisdiction to make the order sought, but, in the light of the young person's consent it was inappropriate to do so;

b) The presence of consent is persuasive but not decisive to the making of an order;

c) If there is consent, then the circumstances do not amount to deprivation of liberty under Art 5;

d) If there is consent there is no need to make an order and, applying CA 1989, s 1(5), the court should not do so; but if the young person is unreliable or prone to equivocation the order could still be made.

60. Mr Twomey went on to make a further, important, concession by accepting that Mostyn J was wrong at paragraph 8 of the January judgment when he said:

"Therefore, I do accept, even though this may appear anomalous, that where the court is considering secure accommodation pursuant to the alternative [inherent jurisdiction] procedure, that it does have to be satisfied of the presence of a lack of valid consent."

That was, in my view, a fundamental concession; particularly as the preceding sentence in Mostyn J's judgment demonstrates that the judge only came to hold the view of the law that is now conceded to be erroneous as a result of being persuaded as to its correctness by Mr Laing's submissions.

61. Despite making these concessions, Mr Twomey did not accept that the appeal was at an end because, in his submission, 'when conducting the overall balancing exercise', the court must consider whether or not the proposed regime amounts to a deprivation of liberty and, in that regard, lack of valid consent remains an essential element.

62. Mr Twomey did, however, accept that the appeal was now to be seen as one asserting an error in the exercise of the judge's discretion and that this court would only be justified in intervening if satisfied that the judge had been 'wrong' in holding as he did.

63. For the local authority, Miss Amanda Weston QC, leading Ms Amanda Meusz, submitted that the appellant's concessions were well made and that the question of consent was only relevant as part of the court's overall welfare evaluation when considering the young person's wishes and feelings. Miss Weston submitted that the second element in Storck had no relevance to the jurisdiction of the court on an application such as this. Where, however, there was clear evidence of a likelihood of future behaviour inconsistent with consent to restrictions, a judge is entitled to hold that such consent is neither authentic nor valid in precisely the same manner that Keehan J had envisaged if the facts of Local Authority v D had not been as he had found them to be.

64. Miss Weston underlined the extent of the current over-demand for beds in secure units by informing the court that, during the week of the appeal hearing, her local authority had located one bed in England and Wales which was being sought by 35 applicants.

65. Miss Weston also explained that the provision in the present case was bespoke to the particular needs of the young person who required facilities over and above those provided in standard secure units. In those circumstances, she suggested that, even if an approved secure unit had been available, it would nevertheless have been necessary for the local authority to apply to the High Court for approval of a placement outside a secure unit.

66. On behalf of CAFCASS Cymru, Miss Ruth Henke QC, leading Miss Harriet Edmondson, afforded valuable assistance to the court by explaining the similarities and distinctions between the statutory scheme for secure accommodation under the Welsh legislation when compared to that in England. Given the manner in which the appeal developed, it is not necessary to afford consideration to those matters in this judgment, but we are most grateful to Miss Henke and those who instruct her for their willingness and obvious ability to assist the court on those issues.

67. In common with the other parties, Miss Henke submitted that a lack of valid consent was not a prerequisite to the exercise of the inherent jurisdiction to authorise a secure placement. Going further, she submitted that a court order was necessary in such cases to establish the lawfulness of the regime and also to safeguard the welfare of the young person by affording the court an overview of the arrangements.


Discussion: Is a lack of valid consent a pre-requisite to the exercise of the inherent jurisdiction authorising restriction of the liberty of a young person?
68. Although the point is now conceded for the purposes of this appeal, it is helpful to record brief reasons why the Appellant's concession on the question of whether a lack of valid consent is a pre-requisite to the exercise of the inherent jurisdiction to restrict liberty was correctly made.

69. On the basis of the ECtHR and domestic case law, and on the basis of the statutory scheme for secure accommodation in CA 1989, s 25 and SSW(W)A 2014, s 119, it is clear that, whilst a lack of valid consent may be an element in determining whether a person is deprived of their liberty in any given circumstances for the purposes of Art 5, lack of consent is not a jurisdictional requirement either for making a statutory secure accommodation order or for the High Court to exercise its inherent jurisdiction to authorise a local authority to restrict a young person's liberty. That conclusion is established on the following four bases:

a) The consent, or otherwise, of the young person is not a relevant factor in the statutory scheme;

b) There is no domestic authority to the effect that it is necessary to find an absence of valid consent before the court may authorise a local authority to restrict the liberty of a young person;

c) To hold otherwise would be to confuse the distinct temporal perspectives of Art 5 and an application for authorisation;

d) It would also mistake the purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation.

(a) The statutory scheme does not require lack of consent
70. The consent, or lack of it, of the young person who is the subject of a secure accommodation application is not a factor to which reference is made in any part of the statutory scheme under CA 1989, s 25 or SWW(W)A 2014, s 119. The statutory scheme has been held to be compatible with, and not in breach of, ECHR Art 5.

71. The fact that 'consent' is not a factor in the statutory scheme, in contrast to the requirements of Art 5 when determining whether there has been a deprivation of liberty as established by the second element of Storck, points up the essential difference between the two processes. Section 25 and s 119 are concerned with the authorisation of the placement of a child in secure accommodation: "… a child … may not be placed … in accommodation … for the purpose of restricting liberty ("secure accommodation") unless …". By s 25(2) and s 119(2) regulations may 'empower the court from time to time to authorise a child to be kept in secure accommodation' for such period as the regulations may specify. Where the statutory criteria in s 25(1) or s 119(1) are satisfied the court 'shall' or 'must' 'make an order authorising the child to be kept in secure accommodation' (s 25(3) and s 119(3)) – see Re M (Secure Accommodation).

72. The effect of a court order under s 25 or s 119 is, therefore, to 'authorise' the applicant local authority to keep the subject child in secure accommodation. The effect of authorisation under s 25 is most clearly demonstrated by s 25(5A) which spells out the effect of a secure accommodation order for a placement in Scotland:

(5A) Where a local authority in England or Wales are authorised under this section to keep a child in secure accommodation in Scotland, the person in charge of the accommodation may restrict the child's liberty to the extent that the person considers appropriate, having regard to the terms of any order made by a court under this section. [emphasis added]

73. In contrast to a sentence of imprisonment passed by a criminal court, a local authority is not required to restrict the liberty of a young person who is the subject to a secure accommodation order; s 25 and s 119 do no more than establish a system for the authorisation of such placements. The statutory scheme is therefore focused upon whether or not the factual circumstances are such as to be sufficiently serious to justify restricting liberty.

74. The welfare of the child, whilst relevant, is not the paramount consideration for a court when determining an application for a s 25 or s 119 order (Re M (Secure Accommodation Order) [1995] 1 FLR 418). The judgment of Butler-Sloss LJ (as she then was) in Re M justifies reading in full, but the reasons supporting her conclusion, with which Hoffmann LJ and Sir Tasker Watkins agreed, included the following:

a) Section 25 sits within Part 3 of CA 1989 which is structured to cast upon the local authority duties and responsibilities for children in its area, including those who are being looked after.

b) The general duty of a local authority under Part 3, which is to safeguard and promote the child's welfare, is not the same as the duty of a court under CA 1989, s 1 to afford paramount consideration to the child's welfare.

(b) No domestic authority requires there to be a lack of valid consent
75. Save possibly for the decision of Keehan J in Local Authority v D to which I will now turn, and, of course, Mostyn J's decision in the present case, this court has not been taken to any authority for the proposition that a lack of valid consent is a necessary jurisdictional pre-requisite before the High Court may exercise its inherent jurisdiction to authorise restriction of liberty. The role of the High Court, in holding as closely as possible to the scheme of s 25 and s 119 in these cases, is that of determining whether a local authority is to be authorised to restrict liberty.

76. This court was told that, in the present case, since the making of the order in March, the regime at the second placement has been relaxed so that the appellant now spends over three hours each day of 'free time' with the expectation that the amount of free time will increase by 30 minutes each week. The relaxation of the regime was a matter within the discretion of the local authority under the structure of the order made by Mostyn J who, rather than requiring restraint, had simply sanctioned its use.

77. In like manner to the effect of a secure accommodation order, an order under the inherent jurisdiction in these cases does not itself deprive a young person of his or her liberty, it merely authorises the local authority (or those acting on their behalf) to do so. This distinction was, unfortunately, not made sufficiently clear by Keehan J in Local Authority v D when he summarised the issue before the court (at paragraph 9) in terms of determining whether or not C was deprived of his liberty. With respect, the issue in such cases is, rather, whether the court should give a local authority the authority to deprive a young person of their liberty should they consider that that is necessary. In the event, Keehan J's determination turned on the different basis that, because of the agreement of the young person it was not necessary for the court to give such authority to the local authority at that time.

(c) The different perspectives of Article 5 and an application for authorisation
78. This further consideration also points to the same overall conclusion. A determination that a person has or has not been deprived of their liberty in breach of Art 5 will often be a retrospective evaluation of the individual's current and past circumstances. In that regard the question of whether or not they have or had consented to the restrictive regime is likely to be an important element; one cannot normally be said to be deprived of liberty when one has freely agreed to the relevant regime. This is in contrast to the court's role under s 25 and s 119 or under the inherent jurisdiction, where the court's perspective is normally prospective, determining whether circumstances exist that justify a local authority placing a child or young person in accommodation for the purpose of restricting their liberty.   

(d) The purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation.
79. The need for an order authorising a local authority to place a child in the equivalent of secure accommodation derives from two factors.  The first, and fundamental aspect, is to ensure that the absence of available secure accommodation does not lead to the structure imposed by s 25 being avoided.  The terms of s 25 should be treated as applying to the same effect when a local authority is placing a child or proposing to place a child in the equivalent of secure accommodation.  When viewed from this perspective, it is clear that a local authority cannot invest itself with the requisite authority and that a child's agreement or consent cannot authorise such a placement.  Neither the local authority nor a child/young person can authorise what Parliament has decided only the court can authorise.

80. The second factor derives from Article 5.  The court's authorisation means that if the authorisation is used for the purposes of depriving a child of their liberty the legal requirements of Article 5 will also have been fulfilled: see Re K (Secure Accommodation Order: Right to Liberty) [2001] 1 FLR 526.  The court will necessarily have determined that the child's welfare justifies, or even requires, him/her being deprived of their liberty for the purposes of maintaining the placement in the secure accommodation.

81. Drawing these matters together, once it is seen that the court's power under s 25 / s 119 is not dependent upon any question of consent, the difficulties that arose in this case, as it was presented to the judge and, initially, to this court, disappear.  The fact that any consent may or may not be 'valid' or 'enduring' on the day the order is sought, or at any subsequent point, or that a 'valid' consent is later withdrawn, is irrelevant to the scope of the court's powers, whether they are exercised under statute or under the inherent jurisdiction of the High Court.  The existence or absence of consent may be relevant to whether the circumstances will or will not amount to a deprivation of liberty under Art 5.  But that assessment is independent of the decision that the court must make when faced with an application for an order authorising placement in secure accommodation, registered or otherwise.

82. This approach, where the question of whether or not an Art 5 deprivation of liberty occurs depends upon the facts on the ground at a particular time and is not necessarily required by, or created by, the court order but by the act of those caring for the child under the court's authorisation, accords with the ECtHR jurisprudence summarised at paragraph 23 and onwards above.

Further, the need for there to be an absence of valid consent before the Storck criteria are established, does not mean that the presence of an apparently valid consent prevents the circumstances from amounting to a deprivation of liberty (see De Wilde, Ooms and Versyp, Storck para 75 and Buzadji). In terms of domestic authority, paragraphs 23 to 31 of MM and PJ could not be more clear – "where conditions amounting to a deprivation of liberty are compulsorily imposed by law, the agreement of an individual cannot prevent that compulsory confinement from constituting a deprivation of liberty". In like manner, it is to be recalled that the court in De Wilde stated:

"Finally and above all, the right to liberty is too important in a "democratic society" within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention might violate Article 5 even although the person concerned might have agreed to it" [emphasis added].

Conclusion
83. It inevitably follows from the above analysis, and from the Appellant's concession, that Mostyn J's initial misgivings were well-placed but that he was unfortunately drawn into a legally erroneous position by accepting that it was necessary for the court to find a lack of valid consent before it could grant the local authority's application. In the circumstances any question of the judge being correct in adding the gloss of 'enduring' to this non-existent jurisdictional requirement falls away.

84. I should make clear that this case does not concern the placement of children in other than the equivalent of secure accommodation.  Different considerations will apply when an application is directed towards, and only directed towards, a deprivation of liberty.  In that situation, subject to De Wilde,  the question of whether or not the subject of an application to authorise the deprivation of liberty of a young person under the inherent jurisdiction is in agreement with the proposed regime may form part of an evaluation of whether such authorisation is necessary. Local Authority v D is an example of a case where the judge concluded that the young person's stance rendered a court order unnecessary.

85. Conversely, as referred to above, once the court has authorised placement in secure accommodation or its equivalent, it may properly be considered that the matter can be left to those who are authorised to operate the care regime on a day to day basis and, as in the present case, they may work with the young person in a flexible manner using their powers of restriction or deprivation when necessary, but relaxing them when it is safe and appropriate to do so. Such issues are fact-specific to each case and are not matters of jurisdiction.

86. The Appellant's appeal, as it had become by the close of argument, is now no more than a challenge to the judge's discretion and could only succeed if this court were to be satisfied that the judge was wrong to grant authorisation to the local authority notwithstanding the apparent consent of the young person. There is no basis for holding that Mostyn J was 'wrong' to authorise restriction of liberty in this case. Indeed, as the judge himself observed, the breakdown of the placement so soon after the January order had been made vindicated his determination on that occasion; it also justified the making of a further order in respect of the new placement.

87. It follows that, if My Lords agree, this appeal must be dismissed.


The wider issues and the need for scrutiny

88. Before concluding this judgment, I return to the concern (referred to in paragraph 5) that so many young people are now being placed in secure accommodation outside the statutory scheme laid down by Parliament in units which, by definition, have not been approved by the Secretary of State as secure children's homes. Whilst the High Court has a duty to consider such cases and must come to a decision taking account of the welfare needs of the individual young person, in the wider context the situation is fundamentally unsatisfactory. In contrast to the Secretary of State, the court is not able to conduct an inspection of the accommodation and must simply rely upon what is said about any particular unit in the evidence presented to it. In like manner, where a local authority, as is typically the case, is looking to place a young person in a bespoke unit a great distance away from their home area, the local social workers must make decisions at arm's length and, it must be assumed, often without first-hand detailed knowledge of the particular unit.

89. The wide-ranging and powerful submissions of the ALC raise issues which are beyond the compass of this appeal but nevertheless deserve consideration in other places. The ALC identifies the following four key questions arising from the fact that a parallel system now exists under the inherent jurisdiction with respect to the secure accommodation of young people who would otherwise fall within the statutory code:

i) What is the impact, if any, on children of there being in use two parallel processes?

ii) Is there a disparity in the adherence to due process obligations or in the safeguarding a child's access and participation in court decisions between these two processes?

iii) Is there a disparity in the practical protection afforded to children through the two processes which may result in arbitrary unfairness?

iv) What are the effects on the Convention Rights of children and the protection of their Article 5 and 6 rights of having two processes and in particular when does the ECHR case of Storck apply?

90. In the circumstances, a direction will be made that a copy of the judgments in this case is sent to each of the following: the Secretary of State for Education, the Secretary of State for Justice, the Chair of the Education Select Committee, the Chair of the Justice Select Committee, the Welsh Government and the Commissioner for Children.

91. Lord Justice Moylan: I agree

92. Lord Justice Peter Jackson:  I also agree

1 Children accommodated in secure children's homes at 31 March 2018: England and Wales (Department for Education 7 June 2018)