The court agreed with the Official Solicitor that a local authority sharing parental responsibility for a child by virtue of a Care or Interim Care Order could not consent to arrangements for that child which would otherwise amount to a deprivation of her liberty. Keehan J did not accept that a parent
may never give valid consent to such confinement; however, when the young person is aged 16 or 17, a parent may not give valid consent because this would fall outside the scope of the parental responsibility. Keehan J found that this decision was supported by a range of instances in which Parliament has properly drawn a distinction between children and young people aged 16 an over [see para 64]. The distinction is not based on any explicit precondition that the young person is capacitous.
The Local Authority submitted that, as D lacked capacity to consent to his accommodation or confinement because of his disabilities, D's parents must be able to provide consent on his behalf - 'substituted consent'. Keehan J firmly rejected this proposition on the basis that all people are entitled to the protection afforded under Art 5, ECHR, and to deny D this protection on the basis of his disability would be to discriminate against him. Furthermore, and considering the central role the Local Authority had taken in identifying and implementing D's living and education arrangements, Keehan J found that it would be perverse to find that placement was not imputed to the State (Limb 3 of the Storck
test). The court goes on to consider that, even if that analysis is wrong, the State would have a positive obligation under Art 5(1), ECHR to protect D by applying to the court to determine whether the arrangements constitute a deprivation of his liberty and, if so, to seek authorisation for the continuation of those arrangements [see para 134].
In this case, D was being deprived of his liberty, and that deprivation needed to be authorised. Perhaps understandably in the current climate, the Local Authority attempted to dissuade the court from reaching this conclusion because of the number of applications that local authorities would have to make to the Court of Protection on the back of the decision. Keehan J rejected this submission, stating that resource considerations should not, and cannot, be relevant to decisions made by the Court of Protection - a message conveyed by Black LJ in Re X (Court of Protection Practice)  EWCA Civ 599
at para 18. Keehan J resisted the Local Authority's invitation to give general guidance on the issue of deprivation of a young person's liberty, considering it to be imprudent and, probably, unhelpful to do so.
The official judgment can be found here