‘It is a rare event where, in an appeal against a first instance judgment, all parties unequivocally say that the judgment was wrong. So it was in J v Bath and North East Somerset Council [2025] EWCA Civ 478, which concerned a profoundly disabled 14 year-old (‘J’) in respect of whom the respondent local authority had been granted a full care order under section 31 of the Children Act 1989. Everyone agreed that J’s liberty needed to be restricted to a certain extent to properly look after him. The question was whether this meant that the elements of a ‘deprivation of liberty’ under Article 5 ECHR (the right to liberty) were satisfied as respects J’s care arrangements, so that a court had to make a deprivation of liberty (‘DoL’) order to render those care arrangements a lawful deprivation of liberty. In the High Court, Lieven J had held that the elements were not satisfied, and so no DoL order was necessary because there was no deprivation of liberty under Article 5 ([2024] EWHC 1690 (Fam)). The Court of Appeal (Sir Andrew McFarlane PFD, King and Singh LJJ) came to the opposite conclusion: J’s care arrangements amounted to a deprivation of liberty, and so a DoL Order was necessary to render those arrangements lawful under Article 5 and section 6 HRA 1998. The Court drew particular assistance from the submissions of the Secretary of State for Education, who intervened in the appeal. The Education Secretary was represented by Joanne Clement KC, who led this Blog’s very own Samuel Willis.’
Administrative Court Blog, 7th May 2025
