ECHR Article 5 and Children in Care: Necessity of DOLs Orders – State Consent Insufficient

Introduction

J v Bath and North East Somerset Council & Ors ([2025] EWCA Civ 478) is a Court of Appeal decision concerning a 14-year-old boy (“J”) with profound autism, ADHD and Pica. From April 2020 J was accommodated in a specialist children’s home by mutual agreement with his parents under section 20 of the Children Act 1989 (“CA 1989”). In June 2024 Mrs Justice Lieven made a final care order under CA 1989, section 31, placing J under the shared parental responsibility of his parents and the local authority, albeit with the local authority having controlling authority under section 33(3). All parties agreed that J’s disability and the regime in the home restricted his liberty sufficiently to engage Article 5(1) of the European Convention on Human Rights (“ECHR”). The sole issue on appeal was whether, despite the local authority’s consent, the care order alone suffices to render confinement lawful or whether a bespoke deprivation of liberty safeguard order (“DOLs order”) remains required.

Summary of the Judgment

The Court of Appeal (Sir Andrew McFarlane P, King LJ and Singh LJ) allowed the appeal. It held that a local authority, acting as a public body under a care order, cannot validly consent to the confinement of a child in circumstances engaging ECHR Article 5. In line with Strasbourg authority, the state may not “self-authorize” a deprivation of an individual’s liberty. Judicial authorization—by way of a DOLs order under the Mental Capacity Act 2005 (as extended to children by Article 5 and section 64 of that Act) or other court process—remains mandatory. Mrs Justice Lieven’s contrary conclusion, that a care order and parental-responsibility consent negate the need for separate court authorization, was overturned.

Analysis

Precedents Cited

Storck v Germany (2006) 43 EHRR 6: Established the three-part test for deprivation of liberty under Article 5—(i) objective confinement element, (ii) absence of valid consent, and (iii) state imputability.
HL v United Kingdom (2004) 40 EHRR 761 (“Bournewood”): Held “informal” detention of a vulnerable adult breached Article 5 in the absence of procedural safeguards.
Cheshire West & Chester Council v P [2014] UKSC 19: Emphasised that regardless of benevolent purpose, any state-arranged confinement engaging Article 5 requires proper safeguards and independent oversight.
Re D (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam) (“Re D No 2”): Keehan J held a local authority cannot consent to the deprivation of liberty of a child under a care order.
Re H [2020] EWCA Civ 664 and Re C (Child in Care: Choice of Forename) [2016] EWCA Civ 374: Developed an “of such magnitude” test for decisions by a local authority exercising parental responsibility when overriding parents.
Re T (A Child) [2021] UKSC 35: Confirmed that a care order alone does not empower a local authority to detain a child without a DOLs order or other judicial sanction.

Legal Reasoning

The Court of Appeal applied the ECHR framework, giving primacy to Article 5. Under Article 5(1) and (4), any deprivation of liberty must be “in accordance with a procedure prescribed by law” and subject to “speedy” judicial review. The critical second limb of Storck—the absence of valid consent—cannot be satisfied by the local authority’s consent, because the local authority acts as an organ of the State. Allowing a state body to authorize its own exercise of detention power would defeat Article 5’s purpose of preventing arbitrary confinements.

The judgment emphasised HL v UK’s finding that the absence of procedural safeguards leads to arbitrary deprivations, and Cheshire West’s reaffirmation that even benevolent care regimes require independent authorization. Contrary to Mrs Justice Lieven’s emphasis on domestic parental-responsibility powers under CA 1989, section 33, the Court of Appeal held that the ECHR constraints override any domestic rule that might otherwise treat deprivation of liberty as an “ordinary” parental decision. Re D No 2’s conclusion that a local authority cannot give valid consent under Article 5 was endorsed as consistent with Strasbourg jurisprudence.

Impact

This decision clarifies that no child subject to a care order may lawfully be deprived of liberty without judicial authorization under the DOLs scheme (or equivalent court process). Local authorities must therefore apply for DOLs orders whenever confinement engages Article 5. The ruling safeguards children’s rights by ensuring procedural safeguards, independent review, periodic checks and the child’s right to challenge confinement under Article 5(4). It prevents the “Bournewood gap” from recurring in the children’s context and harmonizes domestic practice with Strasbourg case law.

Complex Concepts Simplified

Deprivation of Liberty (DOL): A confined state where a person is not free to leave, triggering ECHR Article 5.
Storck Test: Determines deprivation of liberty by checking confinement (objective), lack of valid consent (subjective), and state responsibility (imputability).
Care Order (CA 1989, s 31): Court order giving shared parental responsibility to local authority and parents; local authority controls exercise of responsibility (s 33).
Parental Responsibility: Rights and duties a parent has for a child, which a local authority exercises when a care order is in place.
DOLs Order: Court or tribunal authorization under the Mental Capacity Act 2005, extended to children by Article 5, to lawfully deprive someone of liberty with built-in safeguards.
Inherent Jurisdiction: Court’s residual power to authorize actions (such as deprivation of liberty) not covered by statute.

Conclusion

J v Bath and North East Somerset Council & Ors establishes that under ECHR Article 5 a child in care cannot be lawfully deprived of liberty by state authorities without independent judicial authorization. Domestic parental-responsibility powers do not override Convention safeguards. This ruling closes any “care order exception” to the DOLs regime, reinforces procedural protections, and aligns English law with Strasbourg’s insistence on preventing arbitrary or unjustified detentions. It is a landmark clarification that will guide local authorities, courts and practitioners in protecting the liberty and security rights of vulnerable children.