Medway Council v The Father & Anor

1. I am concerned for a young person who I shall refer to as O. O is now 15 years old. Sadly, her mother died a couple of years ago. O lives with her father who is devoted to her.

2. O is profoundly disabled. O has complex needs arising from her premature birth during which she was starved of oxygen. O has been diagnosed as having autism, a profound learning disability, global development delay, chronic lung disease, bronchopulmonary dysplasia, gastro-oesophageal reflux and bilateral hydronephrosis. O’s care needs are significant. O is PEG fed three times a day and needs assistance with washing, toileting, and dressing. O is non-verbal but communicates through her body movements and facial expressions. O can mobilise and walk independently although she cannot stand up straight and her gross and fine mobility skills are impaired. O is described as moving quickly and being inquisitive. She lacks capacity to consent to her own care package but is described in the papers before me as knowing what she likes and what she does not like. O does not have the capacity to consent to her own deprivation of liberty. O is said to need considerable stimulation and engagement, especially when outside her family home. If not engaged O will walk off and put herself at risk of harm. When O is unable to do as she wants, O’s behaviours can escalate. O will cry, scream and drop to the floor, kick doors and walls. With reminders and time to process, O can regulate herself

3. O’s father is rightly described as devoted to O. He does all he can for her. O’s father provides day-to-day care for his daughter. In addition, O has a package of care provided under an ECHP and a Child in Need welfare plan ( s.17 Children Act 1989 ). As such, O is provided with services and support by the local authority. O is visited by a social worker every 15 days and has a Child in Need review every six-eight weeks. Support workers, an agency commissioned by the local authority, attend within the home for 40 hours per week in term time, 44 hours per week in the school holidays. The Agency workers attend the home twice a day: two hours in the morning to prepare O for school and 4 hours in the evening after school. O attends a special needs school. School staff support O with her personal care as required. All the doors at the school are managed by the keypad and fob locking system; the combination is not shared with O or any of the children who attend that school. If by any chance O was able to leave the premises, she would be followed and returned to school. In addition, O is provided with two nights per month respite care at a short breaks home run by the Local Authority. There, O receives 1:1 supervision and is not permitted to move freely about the facility or when out in the community for her own safety. O has full 1:1 support always when attending the short breaks home and cannot be left unsupervised. At the short breaks home, a keypad and fob locking system is in place to keep all children safe and ensure they do not venture into harmful areas or leave the premises where they can come to some harm. To ensure that O does not enter other children’s rooms during the night, a staff member/s sit near O’s door to redirect O quickly back to bed, if she wakes so that O does not disturb others. O requires staff to open doors for her as she has no danger awareness and could not access the community without supervision. The short stay home requires the use of O’s wheelchair when in the community as O will drop to the floor and decline to move even if in a dangerous location such as roads or carparks. O does not use a harness when accessing the home’s transport, be it in a bus or smaller vehicle, but O does have full 1:1 supervision and needs to sit in a double seat with a staff member next to them. O does not sit on a single seat as this does not keep her safe whilst travelling.

4. On 30 September 2025, Medway County Council, the local authority, issued an application for an order under the inherent jurisdiction in relation to O. If permitted to exercise the inherent jurisdiction, they seek an order to deprive O of their liberty for a period of 12 months. The application before the court is for the court to authorise the Local Authority to deprive O of her liberty while providing services to O and in particular a. Support with personal care at home, at school and at the residential home b. Being under constant supervision at home, at school and at the residential home. c. The use of locks on doors to keep O from leaving d. The use of a 3-point harness to restrain her when being transported on the school bus

5. On behalf of O, O’s Guardian has taken the view that it is neither necessary nor proportionate for such an order to be made in this case. O’s father was concerned that the care package that O was now receiving was significantly less than had been in place previously. The local authority had not previously sought an order from the court to authorise any aspect of any prior care package and had been content to work with him and rely on his consent when there was more extensive involvement. He considers the application for a deprivation of liberty order intrusive and undermining of his parental responsibility.

6. On 8 October 2025 the application came before HHJ Furness KC sitting in the National Deprivation of Liberty List. He considered that he needed more detailed information about the day-to-day care regime, how O functions and how any care package impinges on that functioning. He considered that it was not clear what elements of the care package the local authority argued amounted to a deprivation.

7. The application was listed before me on 24 October 2025 for oral argument. At that hearing the local authority was represented by Ms Scarborough and O was represented by Ms Farrington KC. O’s father attended on the video link. At the conclusion of the hearing, I required counsel to conduct further research. That was received on 31 October 2025. I am grateful to counsel for their in-depth arguments. A Summary of the Arguments Before Me

8. On behalf of the local authority, it is argued that none of the restrictions on making an order under s.100(2) CA 1989 apply in the present case. Hence pursuant to s.100(3) CA 1989 the court may exercise its discretion to permit the local authority to bring an application under the inherent jurisdiction if the criteria in s.100(4) CA 1989 are met.

9. It is submitted that Mr Justice MacDonald in Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 Fam provides a helpful summary of the considerable body of case law relating to whether a living situation amounts to a deprivation of liberty. In Re RD (Deprivation or Restriction of Liberty [2018] EWFC 47 Cobb J (as he then was) gave further guidance when determining the “acid test”.

10. It is argued that O requires all her care needs to be provided by others including agency staff at home, at the residential home where they attend for respite care and after-school club and in school. The local authority submit that O is deprived of her liberty. O is not free to leave the family home, her school or the short stay home. Whilst, it is accepted, locking the front door at the family home would not of itself be an unreasonable restriction on a 15-year-old, a 15-year-old might be expected to have some liberty to come and go as they please or at least enter the garden at will. In contrast, O is under constant supervision. O is restricted from entering areas such as the kitchen in the family home. O is not permitted to go anywhere unaccompanied; O is not free to move around or leave at school, at the residential home or when being transported to school or the residential home. It is said that it does not assist to consider whether those restrictions are imposed by reason of her condition and not externally by the State; O’s freedom of movement is controlled by the State at home by the Agency Staff, at the short stay home provided by the local authority and at school. Further, it is said that it is no answer to say that the restrictions are part of a benevolent arrangement in O’s bests interest to which all parties’ consent and which thus do not amount to a deprivation of liberty.

11. O does not have the capacity to consent to her own confinement. The local authority cannot consent to O’s deprivation of liberty – J v Bath and North-East Somerset Council [2025] EWCA Civ 478 . The real issue in this case is whether O’s father can consent to the deprivation of her liberty. The local authority argues that he cannot . On their behalf it is argued that the reasoning in Re D [A child] [2019] UKSC 42 must apply as a matter of logic equally to children under 16 years of age as it does to those over 16 years of age. It is submitted that case law authority has been contradictory in answering the question about whether a parent of a child under 16 may consent to a deprivation of liberty on behalf of said child, with, it is said, many key judgments refusing to engage with the question. It is said that a parent cannot consent to a deprivation of liberty by the State on behalf of their child because that fundamentally undermines the protective purpose of Article 5 ECHR, essentially resulting in two different regimes for under 16s and over 16s, notwithstanding the case law on the universal applicability of the protections and a lower level of protection for incapacitous children than incapacitous adults.

12. Further it is argued that in any event, in the present case, when the correct comparator is considered in accordance with Cheshire West , that comparator would be capable of making the relevant decisions about their liberty and the arguments put forward in the Supreme Court case of Re D in relation to over 16s apply equally to them.

13. On behalf of O, the Children’s Guardian reminds me that O is not subject to any public law order nor is she accommodated by the local authority. All services are provided to O under s.17 CA 1989 and her ECHP. It is argued that the court may well take the view that several aspects of the restrictions (a-c) are part of O’s care provisions and do not amount to a confinement within the meaning of Storck limb (a) - Peterborough CC V Mother & Others [2024] EWHC 493 (Fam) . It is accepted on behalf of O that Mr Justice MacDonald provides a helpful summary of the salient points for consideration when deciding whether a living situation amounts to a deprivation of liberty.

14. It is further agreed by the Guardian on behalf of O that there are aspects of her care where there is an objective element of confinement to a certain place for a not negligible period of time and that Storck limb (a) is met. However, there are two aspects of the local authority’s application which cause O’s Guardian particular concern. They are: i. Given that O is not a Looked After Child but is receiving assistance pursuant to s.17 CA 1989 , the rhetorical question is posed - are other children with special needs, cared for in the main by a parent and in a similar circumstance, going to be required to have a DoLs order application made where there is similar assistance from the local authority? O’s circumstances are not so different from the circumstances of other children who, like O, are known to the local authority but who are not in the care of the local authority or accommodated by them. ii. Given that the father alone has parental responsibility, can he consent to any measures that could be seen as depriving her of her liberty?

15. Further the Guardian is concerned whether in this case the actions of depriving O of her liberty are imputable to the State or whether they are being taken by her father exercising his parental responsibility either directly or through agents acting on his behalf. In making that argument, the Guardian on behalf of O relies on s.3 CA 1989 , Lord Neuberger in Cheshire West and Chester Council [2014] UKSC 19 , Mr Justice Keehan in Re D (A child: deprivation of liberty) [2015] 922 (Fam) , and Mrs Justice Lieven in Lincolnshire CC V TGA & Others [2022] EWHC 2223 (Fam) . It is submitted that O’s father is simply putting into place proper measures that meet O’s unique and additional needs.

16. That links to the argument on behalf of O that O’s father can consent to her deprivation of liberty - Storck limb (b). In support of that submission, I am taken to Mr Justice Keehan’s observations in Re AB (A child: Deprivation of liberty) [2015] EWHC 3125 (Fam) at paragraph 38 wherein he refers to Re D [2015] above. I am also referred to paragraph 54 of Manchester City Council v P (Refusal of Restrictions on Mobile Phones) [2023] EWHC 133 (Fam) and the decision of Mrs Justice Lieven in TGA (above).

17. O’s father supported the argument on behalf of O’s Guardian. Putting it simply, he felt that there was no need for a court order authorising deprivation of O’s liberty. He considered that the proceedings and the need for a court order undermined his parental responsibility which all agree he has exercised in O’s best interests. The Legal Framework

18. In Wigan BC V Y (refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 (Fam) Mr Justice MacDonald, citing with approval Mr Justice Cobb’s judgment in Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 , provided at paragraph 34 a helpful 13-point summary of the law which I respectfully adopt.

19. The issue at the heart of case is whether O’s father can consent to the deprivation of her liberty. In East Riding of Yorkshire Council v The Mother & Ors [2026] EWHC 181 (Fam) (“ Re L ”) I set out the relevant legal framework at paragraphs 20-38.

20. On behalf of the local authority Ms Scarborough argues that it is illogical to say that Lady Hale’s reasoning in Re D (A Child) [2019] UKSC 42 does not apply to a child under 16. That is an argument derived from paragraph 50 of Lady Hale’s judgment. However, whilst Lady Hale at paragraph 50 pointed out that illogicality, she also stated that she would prefer not to express a view on the extent of parental responsibility in relation to the deprivation of liberty of a child under 16 years of age.

21. In Re D (A Child) [2019] UKSC 42 Lady Black did not consider that the Gillick test extended to the aspect of parental responsibility with which the case before her was concerned, namely the deprivation of liberty of 16–17-year-olds. However, as she made clear at paragraph 89 of her judgment, the position in relation to the confinement of children who are under 16 years of age may be different for a variety of reasons: It could be argued, for example, that the Gillick decision is more readily applicable to under 16s than to over 16s, given that this was the age group with which the House was concerned. It would then be arguable that the position in relation to that group was as the President set out at para 85 of his judgment (quoted above) ie that the parental ability to restrict a child’s liberty continues to be as described by Sachs LJ in Hewer v Bryant, but with a Gillick test rather than the previous fixed ages. But the effect of this, applied to a child who lacked capacity, would not be to leave a gap in the parent’s powers to cater for the particular needs of a child with disability. On the contrary, the child not having attained Gillick capacity, there would be nothing to bring to an end the parent’s common law power to confine the child as required in the child’s interests. To put it in the terms used in this appeal, it would remain within the ambit or zone of the parent’s parental responsibility. However, there would, no doubt, be other arguments to be aired on the point, and I have not formed even a preliminary view about it Ultimately Lady Black left the question entirely open to be decided in a case as and when it arose – see paragraph 90 of Re D (A Child) [2019] UKSC 42 .

22. Hence, whilst Lady Hale and Lady Black commented on the position in relation to under 16-year-olds in Re D (A Child) [2019] UKSC 42 , the decision of Mr Justice Keehan in Re D [2015] EWHC 922 (Fam) stood and indeed remains standing. Mrs Justice Knowles considered the issue in Re Z (a child: deprivation of Liberty: Transition Plan) [2020] EWHC 3038 . She too considered that Mr Justice Keehan’s decision in Re D [2015] above remained law. More recently in Lincolnshire CC V TGA and others [2022] EWGC 2323 Mrs Justice Lieven extensively reviewed the case law before concluding that a parent can consent to a deprivation of liberty within Storck component (b) for a child under 16 who lacks Gillick competence where there is no dispute that such a deprivation of liberty is in that child’s best interests. I agree with Mrs Justice Lieven’s conclusion and her reasoning.

23. On behalf of the local authority, it is argued that a parent cannot consent to a deprivation of liberty by the State on behalf of their child because that fundamentally undermines the protective purpose of Article 5 ECHR, essentially resulting in two different regimes for under 16s and over 16s. However, there are many instances which those under 16 are treated differently to over 16 years old. Mrs Justice Lieven considered the different treatment in statute and at common law of those under 16 and those over the age of 16- see Mrs Justice Lieven at paragraphs 50 of her judgment in TGA . Lady Black in Re D [2019] UKSC 42 at paragraph 71 stated that in her view the age of 16 is pivotal but not determinative of the question then before her: I think it far from irrelevant that as Lady Hale puts it at para 27 (after listing various statutory provisions in her para 26), the law accords to children who have reached the age of 16 a status which is in some respects different from children below that age. According to Lady Black it appears that there was a deliberate choice of the legislature to include children of 16-18 years of age within the scope of the MCA 2005 (amended by MCA 2007) to extend a regime of administrative safeguards to those over 16 years and that that indicates an appreciation of the different needs of the over 16s.

24. In my judgment it is a regime in relation to those under 16 which permits parental consent provided that said parental consent does not leave that child without safeguards. Parental responsibility must be exercised in the best interests of the child. What falls within the zone of parental responsibility is not limitless- see paragraph 55 Re L (above). As a matter of logic, any zone must have boundaries. Where the decisions taken by a holder of parental responsibility are not in the child’s best interests, there are safeguards. The measures include applying to the court to authorise the child’s deprivation of liberty where the parent does not exercise their parental responsibility and refuses to consent to deprivation of their child’s liberty which are necessary and proportionate to safeguard their child. Further if the decision were taken contrary to the child’s welfare, then if the local authority considered the relevant thresholds met, the local authority could apply for public law orders under Part IV and V of CA 1989 .

25. I remind myself that the State is under an obligation to take appropriate steps to safeguard the lives of those within its jurisdiction – LCB v UK 1998 paragraph 36 and that States are required to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman degrading treatment or punishment, including such ill treatment as administered by private individuals – A v UK 1998. If a parent were confining their child in a manner which amounted to inhuman degrading treatment or punishment, then the State in the guise of the local authority would need to act. My Decision with My Reasons

26. The real issue in this case is whether the consents O’s father has given to O being deprived of her liberty, fall within the zone of his parental responsibility for her. That is, ultimately, fact-specific.

27. I agree with Mrs Justice Lieven that when considering the zone of parental responsibility, it is more appropriate to consider the characteristics of the individual child in question than to compare them to a hypothetical child of the same age – TGA at para 27. The age of the child is relevant- see Re D [2015] EWHC 922 (Fam) at paragraph 56. But age is not the sole factor. Each child has their own unique characteristics. A 15-year-old may be highly intelligent and mature enough to make all decisions for herself. Another 15-year-old may lack the necessary degree of maturity and need a parent to make all decisions for them. Another 15-year-old may be mature enough to make some decisions for herself but not all. Children mature at different rates. They have the capacity to decide different issues at different times. The zone of parental responsibility constricts as the child is able to make decisions for themselves. Conversely, if the child is not Gillick competent then the zone of parental responsibility must, in my judgment, remain relatively wide. Ultimately, what falls within the zone of the appropriate exercise of parental responsibility is fact specific. It is dependent on the decision to be taken and the individual child who is the subject of the decision.

28. O is 15 years old. She is not subject to any public law order under CA 1989 . She is not accommodated under s.20 CA 1989. Her primary carer is her father.

29. O is profoundly disabled. She has complex needs as described in the earlier paragraphs of this judgment. I agree with her Guardian’s analysis that O’s circumstances are different to those of the children in Peterborough City Council v Mother & Others [2024] EWHC 493 (Fam) and as set out in Re V (Profound Disabilities) [2025] EWHC 200 (Fam) because O can physically exercise her right to liberty.

30. O is not Gillick competent. She lacks the capacity to consent to her own deprivation of liberty. She lacks the capacity to consent to her care and treatment. Her care, treatment and support is provided on a voluntary basis under an ECHP and under s.17 CA 1989 . O’s father holds parental responsibility for his daughter. O’s father has accepted the care, treatment and support for her which the local authority has provided. He has consented to O’s confinement within the family home, in a short stay home, at school and when being transported between those three locations. It is common ground before me that O’s father is currently making decisions which are in O’s best interests.

31. Given O’s level of maturity and understanding, in my judgment most parents would expect to continue to make decisions for her despite her age. In making decisions for O, they would consider her unique presentation and her individual needs. They would want to factor in the risks she poses to herself and others when taking steps to ensure her safety when she is not in parental care. That is what O’s father has done in her case. He has consented to a package of care to meet her needs and to such confinement as is necessary to ensure she is safe when receiving that package outside his care. That is, in my judgment, an appropriate and responsible exercise of parental responsibility.

32. When O is at home with her father, he locks the doors and ensure the home is secure. There is touching evidence of him meeting her from the school bus and guiding her up the path to their home to prevent her running off. When he is there, he keeps her under constant supervision. Whilst it is her father who is locking doors and placing her under constant supervision and control, her confinement is not attributable to the State and Storck limb (c) is not met. However, as set out in the earlier paragraphs of this judgment, agency care workers provided by the local authority work with O in the family home. They attend primarily to prepare O for school and in the evenings to assist with activities and prepare her for bed. Their focus is on O’s personal care. The provision of that care and treatment does not amount to a confinement within Storck limb (a). However, agency staff also support O to access the community at weekends and provide supervision in the home when her father is not available. When O’s father is not available in the home or when staff take her into the community, the supervision they provide is 1:1 and constant. It amounts, in my judgment, to a confinement within limb (a) of Storck and, in so far as it is provided by agency staff is imputable to the State -limb (c) of Storck . However, it is, in my judgment, an appropriate exercise of parental responsibility by O’s father to consent to those steps to keep her safe when he is not available to supervise her himself. If O’s father were to leave O without such provisions being put in place, he would be neglectful of her welfare interests. The decisions he has taken have been to ensure O’s safety. They are decisions which falls clearly within the zone of parental responsibility, and consequently O is not deprived of her liberty.

33. O attends a specialist school which she loves. There the staff support O with personal care needs. O’s school has a behaviour and anti-bullying policy. The school’s policy was updated relatively recently in May 2025. It provides for the use of touch support, physical intervention, and restraint. The school has a keypad and fob locking system. It is accepted that if O were able to exit the school, she would be followed and brought back to school. Such restrictions, in my judgment, amount to a confinement within Storck limb (a) and are imputable to the State - Storck limb (c). However. O’s father has consented to the school’s behaviour and anti-bullying policy. He has consented, as have most of the parents of the other pupils, to the keypad and fob locking system which prevents pupils leaving the school and keeps them safe. O’s father would expect if O were to leave the school without supervision that she would be brought back to keep her safe. Indeed, O’s father, just like any other parent of a child at such a special school, would expect their child to be kept safe throughout the school day and would be concerned that the school had neglected their duty to their child if she had escaped. O’s father has provided the consents to O’s confinement to ensure that O is safe when she is at school and out of his care. The decisions he has taken are within the zone of his parental responsibility for O. They are decisions which take into account the unique characteristics and vulnerabilities of O. They take into account the school’s behaviour and anti-bullying policy and the fact that lawfully reasonable restraint can be used by a member of staff in accordance with s.93 Education and Inspections Act 2006 . They are decisions which many, if not all, parents take for their children when they attend specialist schools, such as this. The safeguards in place in the school setting objectively do amount to a confinement within the meaning of Storck limb (a) and they are imputable to the State, but they do not amount to a deprivation of liberty because O’s father’s consent to that confinement is within the zone of his parental responsibility for her.

34. O stays at a short stay care home. That provision is made by the local authority under s.17 CA 1989 not s.20 CA 1989. The relevant statutory scheme for the home is provided by the Care Standards Act 2000 . It is regulated by Ofsted and the Children Homes (England) Regulations 2015 apply. The statutory scheme provides safeguards whilst O stays at the home but does not authorise O’s deprivation of liberty. At the short stay home O has 1:1 support for her personal care, toileting and other hygiene tasks, She is fed by a PEG and is nil by mouth. All these are care tasks to which her father consents. They do not amount to a confinement within the meaning of Storck limb (a). However when O stays at the short stay home, O is under constant 1:1 supervision. There is a lock preventing her leaving the premises. At night, a staff member sits near her door to redirect her back to her own bed. Objectively those components amount to constant supervision and control and thus confinement within the meaning of Storck limb (a) . The home is run and staffed by the local authority and thus the confinement is imputable to the State. However O is not deprived of her liberty because her father has consented to that confinement and that consent falls within his zone of parental responsibility for O. It is an appropriate exercise of his parental responsibility for his daughter to ensure her safety when she is not with him.

35. When O is transported by the short stay home, she is under constant supervision in the vehicle. When O is transported to and from her home to school a three-point harness is used. Each is objectively a confinement, and each is imputable to the state but O is not deprived of her liberty because, again, her father has consented to them. That consent again falls within the zone of parental responsibility of her father for O.

36. The consents that O’s father has provided in this case to the deprivation of her liberty are all considered to be in her best interests. Each falls within the zone of his parental responsibility. O is not being deprived of her liberty and the authorisations the local authority seeks are not necessary. Accordingly the application by the local authority is dismissed.