East Riding of Yorkshire Council v The Mother & Ors: parental consent and deprivation of liberty for children under 16

The High Court has considered the extent to which parents can consent to restrictions amounting to a deprivation of liberty for their 12-year-old autistic daughter. L, who has complex needs including autism with significant sensory processing difficulties and demand-avoidant behaviours, is accommodated under s.20 of the Children Act 1989 at Rainbow Cottage, a registered children's home.

L's parents retain parental responsibility and have consented to a comprehensive care package involving 2:1 supervision at all times, locked external doors and gates, and the use of Team Teach physical intervention when necessary to prevent injury, prevent absconding, or assist with transitions when L becomes 'stuck'. All parties agreed these restrictions were in L's best interests and were necessary and proportionate.

The central issue before Mrs Justice Henke was whether parental consent could provide valid consent under limb (b) of Storck v Germany, thereby preventing the arrangements from constituting a deprivation of liberty requiring court authorisation. The local authority sought a declaration that the parental consent was valid, or alternatively, a deprivation of liberty order.

The children's guardian argued that whilst parental consent might be capable of authorising some restrictions, the measures in this case—particularly the use of physical restraint—exceeded the zone of parental responsibility. It was submitted that court scrutiny was necessary to provide adequate safeguards, particularly given that the restraint used went beyond the scope of Regulation 20 of the Children's Homes (England) Regulations 2015.

Mrs Justice Henke reviewed the relevant authorities, noting that the Supreme Court in Re D (A Child) [2019] UKSC 42 had determined that parental responsibility for 16 and 17-year-olds did not extend to authorising deprivation of liberty. However, both Lady Hale and Lady Black had expressly left open the position for children under 16. The judgement of Keehan J in Re D [2015] EWHC 922 (Fam), which held that parents could consent to deprivation of liberty for under-16s lacking Gillick competence, remained good law.

The court considered subsequent High Court authorities including Mrs Justice Knowles in Re Z [2020] EWHC 3038 (Fam), which found that extreme measures involving significant force could strain the boundaries of parental responsibility, and Mrs Justice Lieven in Lincolnshire CC v TGA [2022] EWHC 2323, which concluded that parents could consent to deprivation of liberty for under-16s lacking Gillick competence, provided the decision fell within the zone of parental responsibility.

Mrs Justice Henke found it determinative that L's parents had actively engaged with the local authority, regularly visited their daughter, and made informed decisions in her best interests. They communicated with staff, advocated for L, and provided effective scrutiny of her care. The restrictions to which they consented—continuous supervision, locked doors, and physical restraint using Team Teach techniques—were necessary to ensure L's safety given her presentations and behaviours.

The court accepted that whilst the restraint used went beyond Regulation 20(1)(a) and (b) of the 2015 Regulations, and formed part of L's confinement rather than merely her care, parental consent to such restraint remained within the zone of parental responsibility. For parents not to consent to necessary safety measures would be neglectful. Most parents would expect to make significant decisions for a 12-year-old, particularly one lacking Gillick competence.

Addressing the guardian's concerns about safeguards, Mrs Justice Henke noted that court orders would typically last 6-12 months without review during their currency. She found that the appropriate exercise of parental responsibility, combined with the statutory scheme governing registered children's homes including Ofsted inspections and compliance with the Children's Homes Regulations 2015, provided effective safeguards. L's parents could withdraw consent to specific restrictions if they considered them no longer necessary or proportionate, which would require the local authority to seek court authorisation under s.100 Children Act 1989.

The court distinguished Re Z, where a transition plan involving significant force, restraint in a secure vehicle, and sedative medication was held to exceed parental responsibility. In contrast, the present case involved ongoing care arrangements within a regulated setting, with parents who remained actively engaged and able to monitor their daughter's welfare through weekly visits.

Mrs Justice Henke concluded that on the facts of this case, the consents given by L's parents fell within the zone of parental responsibility as determined by reference to general community standards in contemporary Britain. They constituted valid consent within limb (b) of Storck. Accordingly, L was not being deprived of her liberty for the purposes of Article 5 ECHR, and court proceedings were unnecessary.

The judgement emphasises that the zone of parental responsibility, whilst extensive, is not limitless. Each case will turn on its own facts, with relevant considerations including the child's age, maturity, understanding, capacity, the nature and extent of restrictions, the purpose of those restrictions, and whether they are in the child's best interests. The decision provides important guidance on the circumstances in which parental consent may suffice for children under 16 who lack Gillick competence, whilst maintaining that certain extreme interventions may still require court authorisation.

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