The Court of Appeal announced on the day of the hearing of the appeal against the decision of Lieven J in Re J: Local Authority consent to Deprivation of Liberty [2024] EWHC 1690 (Fam), that it would allow the appeal. Today (29 April 2025), it gave its reasons for doing so (J v Bath and North East Somerset Council & Ors [2025] EWCA Civ 478.
The President of the Family Division, Sir Andrew McFarlane explained Lieven J’s error at paragraph 52:
That error, in short, was to focus on whether, as a matter of domestic law, a local authority may provide ‘valid consent’ in order to avoid engaging limb (ii) of Storck. If, instead, the focus had been, as it should have been, upon the overarching purpose of Art 5, as determined by HL v UK and Cheshire West, the inevitable conclusion would have been that, irrespective of the domestic law relating to parental responsibility, the State can never give valid consent in these circumstances.
Lady Justice King agreed and made clear (at paragraph 57) that:
Put simply, in order to satisfy the requirements of Art 5, there must be an independent check on the State’s power to detain. The local authority is an organ of State which, albeit acting in their best interests, is confining the child. The second limb of Storck requires there to be valid consent to that confinement. It is as Ms Roper submitted (see [35] above), inconsistent with Art 5 for that organ of State to ‘both create the conditions in which a vulnerable person is confined and then to be able to give valid consent [to that confinement] so as to remove the case from Art 5.’
Singh LJ agreed with the President, and at paragraph 58 noted that:
This case provides a powerful example of the way in which human rights issues can arise in any legal context. The Human Rights Act 1998, and the Convention rights to which it gives effect in domestic law, constitute the overriding legal framework for the determination of such issues, in whatever jurisdiction they arise. It is important that sight should not be lost of that framework, and the values which underlie the fundamental rights which it seeks to protect, whatever the context in which those issues arise.
Having been involved in the case (with Arianna Kelly and Eleanor Leydon, instructed by Article 39 and Mind), I will not comment further upon it here, but my fellow editors of the 39 Essex Chambers Mental Capacity Report will no doubt do so in the Children’s Capacity section of the next issue.