FD25C40349 - [2025] EWHC 1974 (Fam)

It was agreed before me that that the court cannot use the inherent jurisdiction in a manner which would offend Section 100(2)(b) Children Act 1989.

G has been an inpatient on a hospital ward on a voluntary basis. It is agreed that nothing within Section 100 has prevented me exercising my inherent jurisdiction and restricting his liberty, as I have, by making an order depriving him of his liberty whilst he has remained on that hospital ward.

It is agreed before me that without valid consent to section 20 accommodation, there would be a clear violation of s.100(2)(b) ‘so as to require a child to be accommodated by or on behalf of a local authority.’

G does not want his parents to know where he is placed or any details about him, including his current identity. G has the capacity to make that decision. His wish is being honoured by the local authority and his parents. In my judgment they cannot, absent that knowledge, make informed decisions about him. Without that knowledge they cannot exercise their parental responsibility effectively or give informed consent, even if they were minded doing so. Thus, whilst his mother has stated that she consents to G’s accommodation, I do not consider in the circumstances of this case that consent can be regarded as informed or valid. Further, even if the mother’s consent was valid (which it is not), G’s father objects to G’s accommodation. Thus, section 20 (9) and (10) Children Act 1989 apply and G cannot be accommodated with parental consent. Even if he were accommodated on his mother’s consent, G’s father could remove G from accommodation without notice at any time -section 20(10) Children Act 1989 and paragraph 37 HXA (above).

Previously, and in my judgment correctly, the local authority has not relied upon parental consent to G’s accommodation. Until he was admitted to hospital, G consented to be provided with accommodation by the local authority under Section 20 Children Act 1989. Whilst he was in hospital G did not withdraw his consent to being voluntarily accommodated by the local authority. He remained a looked after child within the meaning of Section 22 Children Act 1989.

G is 17 years old and has capacity. It is agreed before me that he can consent to his own accommodation by the local authority. He has done just that since March 2024. G is free to withdraw his consent at any time otherwise his accommodation cannot be said to be consensual.

By reason of Section 20 (6) Children Act 1989 before accommodating a child the local authority must so far as is reasonably practicable and consistent with the child's welfare –

Section 20(6) Children Act 1989 does not enable G to dictate this placement. It does, however, enable the local authority to factor into their decisions about accommodation and their placement considerations, his wishes and feelings. It also enables G to give informed consent. Knowing of the placement options available to him, he can either consent or not to his own accommodation under Section 20. Having consented to being accommodated by the local authority, he can withdraw that consent. In my judgment, it is pertinent that a local authority has no power to arrange a transfer of a voluntarily accommodated child from a residential institution to foster care without the permission of their parents - R v Tameside Metropolitan Borough Council ex parte J [2000] 1 FLR 942, QBD. Similarly, it seems to me that a local authority has no power to transfer a child consenting to his own voluntary accommodation to a placement to which he objects if he withdraws his consent to accommodation by the local authority. Consent to accommodation by a Local authority and the type of placement to be provided by the local authority are in my judgment inextricably interlinked. If G objects to the placement or type of placement proposed by the local authority, he may withdraw his consent to being accommodated. That would leave him in need of housing under the relevant housing legislation. However, that is a choice he is free to make and is one G in this case has decided to make. He is an intelligent 17-year-old with capacity who can weigh in the balance the advantages and disadvantages of the various options open to him and decide what he wants to do. He can decided to accept a service from the local authority or not. Whilst the choice G has made is not one with which the local authority agrees, it appears to me that they should respect it. By accommodating G, the local authority is providing him with service. Accommodation is not compulsory. As Lady Hale stated ta paragraph 1 in Williams, cited with approval at paragraph 35 in HXA: “Compulsory intervention in the lives of children and their families requires the sanction of a court process. Providing them with a service does not.”

The reality of the Deprivation of Liberty order sought by the local authority in this case is that they wish the court to authorise taking G against his will to a placement to which he objects and to confine him there; even though if placed there they know he will not and does not consent to his accommodation within the meaning of Section 20 Children Act 1989. The primary thrust of the application is to compel his accommodation rather than to authorise the Deprivation of his Liberty whilst he is voluntarily accommodated. However, Section 20 accommodation is not intended to be used coercively. I agreed with Mr Justice Hedley that section 20 must not be used compulsively in disguise -Coventry City Council above at paragraphs 27-28. Further an application to deprive a child or young person of their liberty under the Inherent Jurisdiction should not, in my judgment, be used to compel accommodation under section 20 at a placement to which G does not consent and to which both of his parents do not consent and even if they did consent do not have the relevant information to give valid informed consent. Seeking a Deprivation of Liberty order to forcefully remove a young person from a hospital ward to a placement where he does not wish to go without the valid consent of his parents or the young person himself, is in my judgment to seek to take a young person into care when the statutory scheme does not permit them to do so. As Mrs Justice Gwynneth Knowles said in Re Q (a child: interim care order: jurisdiction) [2019] 2 FCR 268 at paragraph 23

In my judgment the primary purpose of the application before the court was to compel G to be accommodated against his will rather than to deprive him of his liberty at a placement in which he consents to be accommodated or to which both his parents validly consent to his accommodation. The application offends against the statutory scheme and section 100(2)(b) in particular. In those circumstances, the court declines to make the order sought by the local authority.

I am reinforced in my view that the primary purpose of the local authority’s continued application for a Deprivation of Liberty order was to compel G’s accommodation, by the local authority continuing to maintain their application that restrictions on his liberty were needed when the evidence from the hospital Trust supported by his Guardian was that the restrictions in place on the ward had not needed to be exercised although G knew of the application before the court. The reason why an order Depriving G of his Liberty was still sought by the Local authority was to compel him to be accommodated at a placement they considered to be in his best interests contrary to his wishes and absent his consent to be accommodated at such a placement. That in my view offends sections 100(2)(a) and (b) Children Act 1989.

If I am wrong about that, then I must make a best interest's decision. In those circumstances my task is to consider whether it is in best interests to deprive G of his liberty in the manner sought by the local authority and whether those proposed restrictions are lawful, necessary and proportionate to the risk of harm from which they seek to protect G.

G is 17 years old. He is intelligent. He has capacity to make his own decisions and has been doing so since March 2024 when he consented to his own accommodation by the local authority. He has recently consented to his own inpatient admission to hospital. He has made clear choices about his future education and is taking active steps to pursue that. The evidence is that he is willing to accept home treatment for his wellbeing and is now willing to engage with the local CAMHs team. He has not acted on any expressed suicidal ideation since September 2024. He does not consider the placement identified for him by the local authority, option 2, is suitable to meet his needs. The Guardian shares his views. Both G and the Guardian articulate their reasons for coming to the view they do. Neither G nor the Guardians views can be regarded as unreasonable. Both G and his Guardian express their concern that forcing G to reside in a placement which does not meet his needs, and which is contrary to his express wishes is likely to impact adversely on his wellbeing, including his mental health and is not in his best interests. Against that the local authority argue that option 2 is the most appropriate placement for G. The local authority argue that the deprivation of liberty order that they seek is necessary and proportionate to the risk that G will abscond from the placement, option 2, and put himself at risk of significant harm and possibly death. G and his Guardian argue that there is no need for a deprivation of liberty order in this case. G is willing to go without restriction to the placement I have called option 1. There he will engage with CAMHS and services intended to meet his wellbeing. In essence, the local authority counter that G is unlikely to remain safe if placed in option 1. It is they say likely that history will repeat itself. G, they argue, will become dissatisfied with his placement, abscond and the cycle of expressed demands and threats to harm and kill himself will start again.

In that context I remind myself that my decision to authorise the deprivation of a child's liberty does not act to authorise the placement itself. The task of the court when determining whether to exercise its inherent jurisdiction to grant a declaration authorising the deprivation of liberty is to determine (a) whether the restrictions proposed constitute a Deprivation of Liberty for the purposes of Art 5 of the ECHR and (b) if so, whether the that Deprivation of Liberty is in the child's best interests - Tameside MBC v AM & Ors (DOL Orders for Children Under 16)[2021] EWHC 2472 (Fam). In this case, it is agreed that the restrictions proposed will constitute a deprivation of G’s liberty. That leaves the issue of G’s best interests. I do not consider that it would be in the best interests of G to be deprived of his liberty. I agree with G’s Guardian that to restrict his liberty in the manner proposed by the local authority is likely to be contrary to his welfare interests. Further I consider that the restrictions proposed are neither necessary nor proportionate to the risk of harm in this case. G has not acted on his expressed suicidal ideation since September 2024 and most recently, whilst on the hospital ward the restrictions authorised by the court have not need to be implemented to prevent him absconding even though he knew of the local authority plan for him. His objections to option 2 are reasoned and reasonable. He has made a reasoned and reasonable decision not to go to option 2 and it is not in his best interests to compel him to go there by making orders which would restrict his liberty.

Very properly the local authority has confirmed that if I do not grant the deprivation of liberty order they seek, they will offer G a placement at option 1, his preferred placement. The hospital Trust will transport him there without the need for any restrictions. G has confirmed that he will accept the option 1 placement and will consent to his own accommodation by the local authority. I have made it very clear to G that given my decisions it is a matter for him which services, including accommodation he accepts from the local authority. However, I have also emphasised that if he chooses not to accept services and accommodation from the local authority, he will be a young person aged 17 or over whose housing needs will be considered in accordance with the housing legislative scheme.

The decision I made in relation to G was an interim decision. G is intelligent and capable of making decisions for himself, but he is also vulnerable. I therefore decided that G should continue to be a ward of court and directed that if between 2 May 2025 hearing and the next hearing, any party needed to make an application in relation to him it should be reserved to me, if available. When I made my decision on 2 May, I had intended to have the case back before the end of the month. In the event, my diary did not permit that. Whilst the delay in re-listing the case was not intended, it is I consider pertinent to note within this judgment that since 2 May 2025 no party has made any application before me in relation to G’s welfare.