The High Court heard a peculiar case in which four different persons, who had parental responsibility over a 15-year-old, had asked the Local Authority (LA) to accommodate and provide care for the Gillick-competent child.
Background:
QX is a young man of 15 who has been diagnosed as autistic with severe learning disabilities. He requires continuous care and support and is not Gillick-competent.
QX’s parents are BM and BF. BM has long since recognised she is unable to look after QX, and she has not seen him for over a decade. Until about 2016/17, BF and his then partner, DM, cared for QX together. When their relationship ended, they stayed together although, some 2 years later, BF moved out. DM was the sole carer for QX. About a year later, DM began a relationship with DF, who then moved in with her and QX. From about 2020, DM and DF have cared for QX. In the Summer of 2023, DM and DF were married.
In December 2023, DM and DF were granted a child arrangements order (CAO) in respect of QX and with that, they obtained parental responsibility (PR). In December 2024, QX assaulted DM very seriously, which led DM and DF to ask the LA to accommodate and care for QX. Just before Christmas 2024, QX was introduced to his current placement. He now resides happily at that placement, with appropriate care, although this has led to deprivation of liberty.
The LA was naturally uneasy about the legal basis for the continued arrangement. They applied for a care order in the Family Court. Just before the first hearing, in February, BM, who had previously been unsure about the LA's care plan, formally agreed to it. She was the only one of the four holders of PR who had, until that point, not positively agreed.
Decision:
The Court dismissed the application and concluded that valid consent had been given to QX's deprivation of liberty. The Judge followed his reasoning in Lancashire County Council v PX [2022] that no care order should be made.
His Honour Judge Burrows handed down a very detailed decision in which he first explained PR. The Court explained that BF and BM have PR because BM is QX's mother, and BF acquired it as his father. DM and DF’s freestanding application was wrong, but they acquired PR when obtaining a CAO. The Court, consequently, set it aside but noted that as long as the CAO remains in place, they will have PR.
Turning to the deprivation of liberty, there are three components. The first is the objective confinement “which, following Cheshire West means for a person to be confined in a particular restricted place for a not negligible period, and being under continuous supervision and control and not free to leave that place”. The second is the “absence of consent to that confinement either because the person does not consent (like a prisoner) or is unable to consent (in the case of an adult who lacks capacity, or a child who is not competent to consent).” The third is the responsibility of the state.
The Court followed Lieven, J’s reasoning in the Lincolnshire case, namely that a parent can consent for a child under 16 years old but not for those who have reached 16, as the latter are subject to an application to the Court of Protection.
Implications:
This case demonstrates the complexity of the exercise of PR on older children who are still under the age of 16. As the Court noted, the order on a ‘normal’ 15-year-old would be considered an inappropriate exercise of PR and ill treatment. However, in this case, such control and supervision are necessary, otherwise, it would amount to neglect. This creates a form of discrimination which the Judge alluded to without discussing it in detail.
There was no question about whether their agreement was freely given and in QX’s best interest. Although Article 5 of the ECHR is protective, in some situations, “ the parent knows best and is able freely to act in the child's best interests.”
