The appeal from a decision authorising the deprivation of liberty under the inherent jurisdiction of the 15-year-old girl has been dismissed by the Court of Appeal.
History of the Case
The case related to a transgender child (T) for whom an order had been made depriving her of her liberty (Deprivation of Liberty Safeguards (DOLS) order) by the local authority in whose favour there is a care order. The child had been held in a number of placements which had imposed restrictions on her liberty. The Local Authority believed they had the power to restrict T, who had a history of absconding from secure accommodation, this was appealed primarily on the basis that she consented to the restrictions and so the DOLS order was not necessary.
This is a highly noteworthy case as it is the first time that the Court of Appeal has looked at the right of consent within Article 5 of the European Convention on Human Rights (ECHR).
The focus of the appeal was whether the Judge was right to consider whether the child was ‘authentically’ consenting to the proposed care regime and restrictive arrangements as he had considered that consent must be considered ‘authentic’ or ‘enduring’ in order for it to be considered valid for the purposes of Article 5 of the ECHR. In other words, consent cannot be fleeting and should be enduring.
Mark Twomey QC and Alex Laing, of Coram Chambers (instructed by Emine Mehmet of Duncan Lewis Solicitors) for the Appellant.
On 4 October 2018, the Court of Appeal handed down judgments in the case of T (A Child)  EWCA Civ 2136.
The case was brought before Sir Andrew McFarlane (President of the Family Division), Lord Justice Moylan and Lord Justice Peter Jackson at the Court of Appeal.
The court decided that the Appellant’s appeal was little 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.”
McFarlane held that:
- It would be difficult to argue against the use of inherent jurisdiction for children for whom appropriate secure accommodation is not available due to a lack of resources.
- A lack of consent is not a jurisdictional pre-requisite to the making of an order authorising the deprivation of a child's liberty.
- Previous decisions to authorise DOLS in regards to the current Appellant were not 'wrong'.
- Neither the consent of the child nor the relevant local authority can authorise the placement of that particular child in “the equivalent of secure accommodation”.
- The terms of s 25, CA 1989 should be treated as being equally applicable to cases in which a local authority is placing or is proposing to place a child in "the equivalent of secure accommodation".
The appeal was ultimately dismissed.
of Duncan Lewis instructed Mark Twomey QC
and Alex Laing
for the Appellant and although the decision was not favourable, the case remains the leading one in terms of providing criteria for DOLS orders.
Due to the difficulties identified in this area of law, it has been requested that the judgment be sent to the Secretary of State for Education, the Secretary of State for Justice, chair of the education select committee, chair of the justice select committee, the Welsh government and the commissioner for children.
“This case is incredibly complex as it deals not only with issues around the consent of competent children, but also with the growing number of DOLS applications brought as a direct result of the lack of authorised secure accommodation children’s homes. We hope that the request to send this judgement to various agencies will be the start of reform by the government in this area.”
Emine has extensive experience in all aspects of childcare and family law, but specialises in international children public law & cross border matters. She is a member of the Law Society Child Law Panel and has a significant cross border practice in Hague Convention proceedings (child abduction), inherent jurisdiction disputes and international relocation cases.
For expert advice on Family and Child Care matters, please contact Emine on 020 7275 2799
or email her at firstname.lastname@example.org
Duncan Lewis Family & Child Care Department
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The team has extensive expertise representing vulnerable clients under legal aid, supporting families in care proceedings. Guardians appoint us to represent children in culturally complex care cases given our diverse ethnic workforce and experience dealing with vulnerable clients in physical and emotional abuse, drug or alcohol misuse, neglect, factitious illness, rare illness and non-accidental injury matters.
For expert advice on any family and child care matter, please call 0333 772 0409