Medway Council v The Father & Anor: parental consent and deprivation of liberty for children under 16

The High Court has dismissed an application by Medway Council seeking authorisation to deprive a profoundly disabled 15-year-old of her liberty, ruling that her father's consent to necessary care restrictions fell within the scope of his parental responsibility.

O suffers from multiple conditions including autism, profound learning disability, chronic lung disease and global developmental delay. She requires PEG feeding three times daily, assistance with all personal care, and constant supervision due to her tendency to wander and lack of danger awareness. Whilst non-verbal, she communicates through body movements and facial expressions.

O's father provides primary care with support from a comprehensive package under section 17 of the Children Act 1989. This includes 40-44 hours weekly of agency support workers, attendance at a special needs school, and two nights monthly respite at a local authority short breaks home. At each location, O is subject to constant supervision, locked doors requiring keypads or fobs, and physical redirection when necessary.

The council sought a 12-month deprivation of liberty order covering supervision at home, school and the residential home, the use of door locks, and a three-point harness during school transport. The application was opposed by O's Children's Guardian and her father, who considered it both unnecessary and undermining of parental responsibility.

Ms Justice Henke reviewed the extensive case law, noting that whilst the Supreme Court in Re D (A Child) [2019] UKSC 42 determined that parents cannot consent to deprivation of liberty for children aged 16-17, the position regarding younger children was deliberately left open. Both Lady Hale and Lady Black acknowledged the question required separate consideration, with Lady Black specifically noting at paragraph 89 that "the position in relation to the confinement of children who are under 16 years of age may be different for a variety of reasons".

The judgement affirmed the continuing authority of Keehan J's decision in Re D [2015] EWHC 922 (Fam) and endorsed Lieven J's reasoning in Lincolnshire CC v TGA [2022] EWHC 2223 (Fam) that parents can consent to deprivation of liberty for children under 16 who lack Gillick competence, provided such deprivation is in the child's best interests.

Central to the decision was recognition that what falls within the "zone of parental responsibility" depends on the individual child's characteristics rather than hypothetical comparators. O's profound disabilities meant she lacked capacity to consent to her own care or liberty restrictions. Her father's decisions to accept necessary safeguards across all care settings represented appropriate exercises of parental responsibility.

The court found that whilst various restrictions objectively amounted to confinement within the meaning of Storck limb (a) and were imputable to the state under limb (c), they did not constitute unlawful deprivation of liberty because the father's consent satisfied limb (b). The restrictions at school, including keypad locks and staff interventions, were measures any reasonable parent would expect and consent to for their vulnerable child's safety.

Ms Justice Henke distinguished O's circumstances from other recent cases, noting she could physically exercise liberty unlike profoundly immobile children. This made the restrictions necessary rather than merely prudent. The statutory framework governing the short breaks home provided additional safeguards without authorising deprivation of liberty independently.

The judgement reinforces that parental responsibility for children under 16 who lack Gillick competence remains relatively wide, particularly where complex needs require extensive support. The state's obligations under Article 5 ECHR are satisfied through existing safeguards including local authority oversight, regular reviews, and the availability of public law proceedings should parental decisions cease to promote welfare.

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