FREE CHAPTER from ‘A Practical Guide to Deprivation of Liberty Orders for Children and Young People in the Family Court and Court of Protection’ by Jemimah Hendrick & Amelia Culverwell

06/05/2026

CHAPTER ONE – WHAT IS A DEPRIVATION OF LIBERTY ORDER?

This chapter sets out:

  1. The leading authority on deprivation of liberty order
  2. The application of Article 5
  3. Essential character of the deprivation of liberty orders
    1. The objective component
    2. The subjective component
      1. If under 16
      2. If 16 or 17
    3. The attribution of responsibility to the state
    4. Irrelevant considerations


The leading authority

The very first question you must ask yourself when you are considering whether a DOLs application may be necessary, is “does this care plan amount to a deprivation of liberty for the child or young person?”. There is now an established test for this question set out by the relevant jurisprudence.

The leading precedent cases are P v Cheshire West and Chester Council and another; P and another v Surrey County Council [2014] 2 All ER 585, where the Supreme Court (Lord Neuberger, Lady Hale (as she then was) and Lord Sumption) considered whether living arrangements for three mentally incapacitated adults amounted to a deprivation of their Article 5 rights, and therefore required authorisation under the deprivation of liberty safeguards. Lady Hale delivered the leading judgment, setting out “that human rights are for everyone, including the most disabled members of our community, and that those rights include the same right to liberty as has everyone else’ [1]. At [2]-[10], Lady Hale sets out a comprehensive history of the deprivation of liberty safeguards and at [19]-[32], sets out what is meant by a deprivation of liberty. In summary, the UK courts turn to the jurisprudence of Strasbourg.


Specific facts of P v Cheshire West

In P v Cheshire West and Chester Council and another, P was an adult who had cerebral palsy and Down’s Syndrome and required 24-hour care to meet his personal care needs. He had lived with his mother until her deteriorating health led the local authority to apply for orders that it was in his best interests to move to local authority accommodation where he was supported by staff at all times (two members during the day, one overnight). Staff supported him to attend a day centre, to see his mother, and to go the pub and the shops. He required staff support with all aspects of his care both in and out of his accommodation and they also had to manage some of his challenging behaviours. At first instance in COP, the judge concluded that he was under the full control of the staff and could not do anything without their support and thus P was clearly having his liberty deprived. The judge determined that it was in his best interests for those restrictions to continue. On appeal, the Court of Appeal ([2011] EWCA Civ1257) applied a “relative normality” test and compared P’s life to that which those with similar difficulties might expect to lead, rather than that which he had led when he resided with his mother.

In P and another v Surrey County Council [2010] EWHC 785 (Fam) two sisters had been subject to care proceedings when aged 16 and 15. The care proceedings then transferred to COP when the sisters were 17 and 16. They both had learning disabilities, with the eldest (MIG) having more significant needs than the youngest (MEG). MIG had communication and understanding difficulties with no danger awareness, for example she required help crossing the road. MEG had better communication and understanding but she had autistic traits and challenging behaviours. MIG was 18 at the time of the case and was living with a foster mother who provided significant support to her across all areas of her life. She was not receiving any medication. She attended an education unit during term time and her foster mother took her on trips and holidays. She had no interest in leaving the foster home but her foster carer would stop her should she try to do so. MEG was 17 and had been living with a different foster carer who struggled to manage her complex behaviours and so she moved to a residential NHS facility for adolescents with learning difficulties and complex needs. MEG occasionally required physical restraint and was given tranquilising medication. She required continuous supervision and control in order for her care needs to be met. She also showed no interest in going out of the placement and so did not have to be prevented from doing so. She attended the same education unit as MIG although had a fuller social life than MIG. Whilst both sisters had high levels of need, they were differing and required different types of support and restrictions to meet their respective needs. The judge at first instance in COP held that the living arrangements for both were in their best interests and so were not a deprivation of liberty, a decision which was upheld by the Court of Appeal ([2011] EWCA Civ 190). Wilson LJ, giving the lead judgment, stressed the “relative normality” of the sisters’ lives compared to that which they would have at home with their family. Smith LJ considered that their previous arrangements were irrelevant but ‘what may be a deprivation of liberty for one person may not be for another’ (at [40]).


The application of Article 5

The Supreme Court, in these two cases, identified that the first and most fundamental question in considering the appeals was ‘whether the concept of physical liberty protected by Article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled?’ and noted the differing approach taken by the lower-level court. It is clear from the Strasbourg jurisprudence that a person may be deprived of his liberty without knowing it [35] and ‘the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty’ [35]. Lady Hale emphasised the universal character of human rights, and that they are to be guaranteed to everyone; people with disabilities, both physical and mental, have the same human rights as the rest of the human race [44]. Whilst their rights may need to limited or restricted due to their disabilities, the starting point is the same. Therefore, to be deprived of that physical liberty to go where you want must be the same for everyone.

Importantly, the purpose of any confinement, which may well be to a person’s benefit, is not relevant to whether or not there is a deprivation of their liberty [42]. The fact that their restricted living arrangements are comfortable and make their life enjoyable, make no difference. As Lady Hale stated and is oft-cited; “A gilded cage is still a cage” [46].

 

The essential character of a deprivation of liberty

The second question that flowed was then ‘what is the essential character of a deprivation of liberty?’. Strasbourg jurisprudence establishes three components that needs to be considered when assessing the character of a deprivation of liberty:

  1. The objective component – which is confinement in a particular restricted place for a not negligible length of time.
  2. The subjective component – which is lack of valid consent
  3. The attribution of responsibility for the deprivation to the state.

These have created the foundation of the test for assessing whether or not a DOLs order is required and should be the questions you ask when considering if an application for a DOLs order needs to be made. It is important to note that this test is the same whether you are making your application under the Inherent Jurisdiction or the court of protection.


The Objective Component

The question to ask is whether the person is under continuous supervision and control. From a practitioner’s perspective, indicators you should look for are:

  1. High level of supervision e.g. 1:1
  2. Locked interior and/or exterior doors and/or windows
  3. Not being allowed out of the placement without supervision
  4. If they left the unit, would they be returned i.e. would the police be called
  5. Physical restraint

Age can make a significant difference in assessing whether there is a deprivation, for example a 12-year-old and a 16-year-old would have very different restrictions placed on them; a 12-year-old would not have the same level of freedom as a 16 year old.


The Subjective Component

The next question to consider is whether the child or young person can consent to the deprivation. There may be a consenting parent. However, there are a number of factors to consider which will affect whether this is sufficient for the purposes of authorising a deprivation of liberty of a child or young person.

If under 16:

  1. Gives their own consent:
  • If the child is under 16 and Gillick competent (please see below for further information on Gillick competence) then the child can consent.
  • You must also consider whether the child would withdraw their consent at the time when the restrictions were being put in place. If they are likely to do so, then this may be sufficient for it to be argued that their consent cannot be relied upon; they need to give continuous consent to the deprivation.
  • If a child is Gillick competent, gives their consent to the restriction and would not withdraw their consent, then the arrangements will not require court authorisation. However, this would be unusual in practice.
  1. Parent(s) consent:
  • Parent(s) can consent if the child is not Gillick competent and is under 16.
  • A practitioner must be sure that there are no concerns about the parent(s) own capacity to give valid consent.
  • In circumstances where a parent can give valid consent to the restrictions, the arrangements would be regulated under s20 Children Act 1989.
  • A corporate parent cannot give consent, regardless of whether it holds an ICO or a final care order for a child or young person (para 18 D (A Child) [2020] 2 All ER 399).


A note on Gillick competence

A child under 16 is assumed not to have capacity until proven otherwise. Gillick Competence is the test for assessing legal capacity in children under the age of 16 years, and was established in Gillick v West Norfolk and Wisbech Area Health Authority (1985) 2 A11 ER 402. Children who are Gillick competent are deemed to be capable of giving valid consent to medical treatment.

Practitioners should also consider whether a child is Gillick Competent to consent to other decisions such as a deprivation of liberty. The factors to be considered when assessing whether a child is Gillick competent include:

  • child’s age, maturity (physical and mental) and intellect
  • do they understand the problem or issue, and what it involves?
  • do they understand the risks, implications and any consequences, that may arise from their decision?
  • do they understand the advantages and disadvantages of the issue they face?
  • do they understand any advice or information they have been given?
  • do they understand any alternative options (if available)?
  • can they articulate a rationale around their reasoning and decision making?


A note on parental consent

In QX (Parental Consent for Deprivation of liberty: Children under 16) [2025] EWHC 745 (Fam), HHJ Burrows sitting as a High Court Judge, considered the circumstances in which a person with parental responsibility can consent to DOLs. The local authority had issued applications for a care order and DOLs for QX, who was autistic with severe learning disabilities. The local authority subsequently withdrew both its applications on the basis of parental consent subsequently being given. The authorities are clear that a person with parental responsibility does not exercise substituted consent, but that the right to consent to a deprivation of liberty falls within the scope of exercising parental responsibility. Under the age of 16, children are still of an age when it would be normal for decisions to be made by a parent, even if that decision conflicted with the child’s wishes.

HHJ Burrows considered the line of authority on the exercise of parental to consent to a deprivation of liberty and summarised that “provided the exercise of parental responsibility is for the interest of the child, then it is within the zone of parental responsibility; if it is not, then it is without that zone.” [58]. HHJ Burrows recognised that QX’s parents knew best and were freely able to act in his best interests. As such, neither a care order nor DOLs were necessary. HHJ Burrows acknowledges that as a result of his decision, an identical case to QX would not now result in the need for the local authority to issue proceedings. This would leave parents and local authorities to embark on the challenge of identifying appropriate placements and arrangements for children with complex needs without judicial involvement or scrutiny. In particular, this would leave parents to make “an agonising decision not only whether to part with their child, but also to hand that child over into an uncertain regime of intense restrictions, often with the need to change placements on a regular basis.”[67]. As such, HHJ Burrows advises local authorities to err on the side of caution and issue proceedings if there is a possibility that parents may become overwhelmed by the decision-making process or change their minds for various reasons, and thus withdraw their consent.


If 16 or 17:

  1. Gives their own consent:
  • Valid consent (‘valid’ meaning that they have capacity to consent) is effective as if he/she were of full age
  1. Parent(s) consent:
  • A parent (including the local authority as a corporate parent) cannot consent for a child or young person who is aged 16 or over

A summary of the law in relation to the distinction between the authority of parental consent depending on a child’s age is set out by Keehan J at [38]-[39] of Re D (A Child) (Deprivation of liberty) [2015] EWHC 922 (Fam)).

  1. I have been referred to the provisions of s131 MHA 1983 which states:

131 Informal admission of patients.

(1) Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or [registered, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or [registered establishment] in pursuance of such arrangements after he has ceased to be so liable to be detained.

[ (2) Subsections (3) and (4) below apply in the case of a patient aged 16 or 17 years who has capacity to consent to the making of such arrangements as are mentioned in subsection (1) above.

(3) If the patient consents to the making of the arrangements, they may be made, carried out and determined on the basis of that consent even though there are one or more persons who have parental responsibility for him.

(4) If the patient does not consent to the making of the arrangements, they may not be made, carried out or determined on the basis of the consent of a person who has parental responsibility for him.

(5) In this section—

(a) the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005; and

(b) “parental responsibility” has the same meaning as in the Children Act 1989.]

  1. Further s8 FLRA 1969 provides that:

s8(1) The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.

  1. These provisions are just two examples of where Parliament has chosen, in a number of areas, to draw a distinction between a child and a young person who has yet to achieve his/her majority but who has attained the age of 16 or 17. Thus the legal authority of a parent to consent to the detention or treatment of a 16 or 17 year old is severely curtailed, if not removed.

 

Attribution of responsibility to the state

The question to be asked here is whether the local authority is providing the restriction and the deprivation. If a DOLs application is being contemplated, it is highly likely that the local authority is providing the restrictions on the young person or child. This component will generally always be satisfied in family court or COP proceedings.


Irrelevant factors

For completeness’ sake, please note the following factors which were identified as being irrelevant in considering whether there is a deprivation of liberty (at [50] of P v Cheshire West):

  1. The child’s compliance or lack of objection
  2. Relative normality of the placement (whatever it may be compared to)
  3. Reason or purpose behind a particular placement

In a pair of recent cases (Peterborough City Council v a Mother and a Father [2024] EWHC 493 (Fam) and Rochdale Borough Council v V [2025] EWHC 200 (Fam)) it was held that such was the mental and physical disability of the child, that it deprived them of their liberty and not any “restrictions” that were put in place by the state or parents to keep them safe. However, in QX HHJ Burrows concluded that these authorities “appear to be plainly wrong” [41].

“Consequently, a person, subject to a care plan that requires them to reside in a particular place and be under constant supervision and control and are not free to leave, whether or not their physical or mental capabilities prevent them from leaving, is deprived of his/her liberty, absent their consent.”[44]

HHJ Burrows confirmed that the correct test to be applied remains that set out in Cheshire West.

Summary: Everyone has the same right to liberty, regardless of any disability and consequent need for deprivation of their liberty. The purpose or comfort of a deprivation of liberty is irrelevant. A parent can potentially consent to a deprivation if the child is under 16, in certain circumstances. A parent cannot consent if the young person is 16 or over. A corporate parent can never consent, regardless of age or whether there is an interim or final care order. In practice, the area in which you are most likely to experience issues in every day practice is around whether the level of deprivation requires a DOLs. The greater the level of supervision and control and the older the child, the more likely it is that court authorisation will be necessary. If all three elements of the test are deemed to be met, then an application for a DOLs order will need to be made to regularise those deprivations.

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