FD25C40134 - [2025] EWHC 745 (Fam)

On 24 March 2025, I heard submissions in this case. I immediately told the parties my decision, with a few additional comments by way of explanation. This judgment, which will be handed down shortly after that hearing, focuses particularly on one issue I had to deal with which gave me greatest concern, namely parental consent for deprivation of liberty.

I am very grateful to leading counsel and counsel and those instructing them for the detailed skeleton arguments I received, and the succinct additional oral argument I heard. The parties were agreed as to the order I should make, and the only push back came from me. Below I will explain why.

The issues I had to determine in this case are almost identical to those before me in Lancashire County Council v PX [2022] EWHC 2379 (Fam) (“PX”). There, I had to decide whether a care order should be made where those with parental responsibility had asked the LA to accommodate and look after the child who had serious mental health conditions that made him impossible for them to care for. Furthermore, in the event that I did not make a care order, whether the child’s care plan, which inevitably resulted in his objective deprivation of liberty at the behest of the State had to be authorised by the Court?

I decided that a care order was not appropriate in that case. I reached the same decision in this case.

In PX I decided I would follow the then recent decision of the High Court in Lincolnshire County Council v TGA [2022] 3 WLR 1297 (FD)(“Lincolnshire”), a judgment of Mrs Justice Lieven, meaning that parental consent to the child’s arrangements acted to prevent the engagement of Article 5 of the European Convention of Human Rights (ECHR).

I reached that conclusion in PX because I decided that unless I was satisfied that Lincolnshire was wrongly decided, I ought to follow it. However, at the earlier hearing in this case, I was mindful that the tide may have turned since then and the approach taken by Lieven, J needed to be reconsidered. This was particularly so because of the recent Court of Appeal decision in which Lieven, J’s judgment in Re J: Local Authority Consent to Deprivation of Liberty) [2024] EWHC 1690 (Fam) had been reversed. Unfortunately, at both hearings in this case, and at the time this judgment is written, the judgment of the Court of Appeal in J had not been handed down.

Having read and heard focused argument on this issue and having considered the relevant authorities relied upon, I have come to the same conclusion as I did in PX and I have followed Lieven, J. I do, however, have some misgivings, which were the basis of my interactions with counsel. It seems right for me to outline them here.