Deprivation of Liberty Safeguards (DoLS) specifically apply to adults over 18 in a hospital or care home. For children and young people, the legal framework is different and focuses on parental responsibility, consent, and the Court of Protection.
What amounts to deprivation of liberty?
The term ‘deprivation of liberty’ originates from Article 5 of the European Convention on Human Rights (ECHR), which states that everyone, of whatever age, has the right to liberty. A person’s liberty is deprived if they are confined in a particular place for a period of time and they do not or cannot consent to this. The ECHR requires strict safeguards to be in place for those who are deprived of their liberty, including the requirement that any deprivation of liberty must be by ‘a procedure prescribed by law. A Deprivation of Liberty Order makes it lawful for a person to be deprived of their liberty.
Where a court order is necessary, the court authorises the order and any restrictions are set out clearly in the order. The order allows these restrictions as a maximum – it does not mean that a provider must always apply all the restrictions. The restrictions are permissive.
Considering the case of Cheshire West & Chester Council v P [2014] UKSC 19 there are three elements to the case of whether a restriction is a DOL.
- The objective component – confinement in a particular restrictive place for a not negligible length of time. For the person to be deprived of their liberty, they must be subject to both continuous supervision and control and not be free to leave (this is the acid test)
- The subjective – lack of valid consent
- The attribution of responsibility to the state – the restriction is attributed to a public body.
The objective component example DOL:
Nottinghamshire County Council v LH (No 2) [2021] EWHC 2593 (Fam) — The local authority proposed to place LT in an empty four-bed children’s home. Restrictions on her liberty, amounting to deprivation of liberty (e.g. 3:1 escort inside and outside the home), would be imposed because of the risk of self-harm and violence. The judge concluded that it was necessary and proportionate and in LT’s best interests to be deprived of her liberty there, and during her transfer there. As such a DOL was granted.
Consent
Where a person cannot or does not consent to their confinement, then an application for the authorisation of the deprivation of liberty must be made.
A person who can consent to a confinement:
A child under 16 years old
The recent judgment in Re QX (Parental Consent for Deprivation of Liberty: Children under 16) [2025] EWHC 745 (Fam) brought to light the complex legal position concerning the deprivation of liberty for children under the age of 16. The case confirmed that individuals with parental responsibility can consent to the deprivation of liberty of a child under 16 who lacks Gillick competence “provided the exercise of parental control is for the interest of the child”. Court authorisation is not required in these circumstances.
However, where a child who is under 16 years old, who is Gillick competent, parental responsibility cannot be relied upon to consent to a DOL. An application would need to be made under s.100 of the Children Act 1989 to exercise the inherent jurisdiction of the High court, unless they were consenting to the restrictions.
A young person 16 to 17 years old
Young person 16-17 with capacity
As with adults, young people (aged 16 or 17) are presumed to have sufficient capacity. The only person who can provide valid consent to a young person’s confinement is a Gillick competent young person. A parent cannot consent when the child is 16 and 17 years old [Birmingham City Council v D [2016] EWCOP8].
If a young person has capacity, but does not consent, an application would then be made under s.100 of the Children Act 1989 to exercise the inherent jurisdiction of the High court
Young person 16-17 lacking capacity
If a young person does not have capacity and cannot be supported to reach a point where they are able to decide, then the application would need to be in the Court of Protection under the Mental Capacity Act 2005. If the child is unable to make decisions as to where they live and/or care package they receive then an application should be made to the Court of Protection to authorise the deprivation of liberty. Schedule A1 is not available to a child under 18 and therefore it is made pursuant to s16 and 4A of the Mental Capacity Act 2005. The Court of Protection has jurisdiction for a child aged over 16, but it only has jurisdiction to make decisions about a young person who lacks capacity.
The consequences of not securing a Deprivation of Liberty Order
Consequences for those imposing restrictions:
Unlawful imprisonment: Restricting a person’s liberty without authorisation is unlawful and can result in legal challenges, including potential claims against the care provider or staff.
Breach of rights: It violates the person’s human rights, as it deprives them of their freedom.
Failure to follow procedures: Care providers are required to apply for authorisation at the point when a person is deprived of their liberty.
Lack of a legal basis: An unapproved deprivation of liberty means there is no legal framework in place to justify the restrictions imposed.
Consequences for the individual:
- Lack of best interest assessment: The individual’s best interests may not have been properly assessed, meaning the care plan may not be the most suitable or proportionate.
- Unnecessary restriction: Without a proper assessment, a person might be subjected to a level of restriction that is not necessary to keep them safe or is more restrictive than it needs to be.
- Inability to consent: The individual may be unable to consent to the care they are receiving, and their wishes may not have been considered.
If you would like to instruct Carla Riozzi, please contact her clerk via e-mail family@kchgardensquare.co.uk or telephone 0115 941 8851
