DOLS and Under 16s: Insights from Medway Council v A Father

The decision in Medway Council v A Father offers important guidance on the role of parental consent in cases where a child under 16 is subject to significant care‑related restrictions. It highlights how the courts approach deprivation of liberty for profoundly disabled children living at home as outlined by Graeme Bentley.

Background

The recent authority of Medway Council v A Father [2026] EWHC 235 (Fam) is of relevance to DOLS applications where the subject has a significant disability, the restrictions of their liberty are integral to their care, and the parents are in agreement. In this case, Henke J refused an application to authorise the deprivation of liberty of a 15-year-old profoundly disabled child who was receiving services under the Children Act 1989. Although the restrictions, which included constant supervision, locked doors and restraint during transport constituted a confinement, there was said to be no deprivation of liberty as the father’s consent to them fell within the scope of his parental responsibility for a child who lacked Gillick competence.

The subject of the application, O, lived with her father, her mother being sadly deceased. She was diagnosed as having autism, a profound learning disability, global development delay, chronic lung disease, bronchopulmonary dysplasia, gastro-oesophageal reflux and bilateral hydronephrosis. Her care needs were significant. She was PEG fed three times a day and needed assistance with washing, toileting and dressing. She was non-verbal but communicated through her body movements and facial expressions. She could mobilise and walk independently although she could not stand up straight and her gross and fine mobility skills were impaired. She was able to indicate what she did and did not like but clearly lacked capacity. She was reported to need considerable stimulation and engagement, especially when outside her family home. If not engaged she would walk off and put herself at risk of harm. When unable to do as she wanted, her behaviours could escalate, for example crying, screaming and dropping to the floor, kicking doors and walls. With reminders and time to process, she could regulate herself [2].

O’s father, described as a devoted carer received a package of care under an EHCP Child in Need welfare plan. This included regular social work visits and Child in Need reviews as well as the provision of support workers attending the family home for a minimum of 40 hours per week, visits twice daily for several hours as well as two nights respite per month. The doors at school or in respite were locked, O was not free to move around unsupervised and, when on respite, she would be monitored by staff at night to prevent her entering the rooms of other children. She was supervised in transport though was not using a harness [3].

Medway Council applied for authorisation of restrictions concerning support with personal care, constant supervision at home, school and respite, the use of locks on doors and a three-point harness for use on the school bus. The Guardian did not regard the application as fair and proportionate, and the father saw it as intrusive and undermining of his parental responsibility [5].

The Local Authority said [15] that it was not helpful to consider whether the restrictions arose from O’s disabilities, or whether this was a benevolent arrangement in her interest to which everyone had consented. It identified [11] the conflicting case law as to whether a parent could give consent to the restrictions in respect of a child under 16 years, where a number of key judgments had refused to engage with the question. What is clear from case law is that the parent cannot provide consent once the child is over 16 years, and that the local authority cannot do so at all.

The Guardian questioned [14 – 15] three important points.

• Whether other children cared for by the parent and receiving section 17 assistance in similar circumstances would need DOLS applications
• Whether the father, with sole parental responsibility, could give consent
• Whether the deprivations of liberty were imputable to the state or whether they were being taken by the father in pursuance of his parental responsibility.

The Court’s Analysis

The Court reviewed carefully the case authorities. It said that:

• The leading authority of Re D (A Child) [2019] UKSC 42 had left entirely open the question of whether the Gillick test applied to the deprivation of liberty of under 16-year-olds, ruling only on the issue of 16-17-year-olds (where parental consent is not possible) [21].
• As such, the existing law in relation to under 16-year-olds could be found in the decisions, of Keehan J in Re D [2015] EWHC 922 (Fam) of Knowles J in Re Z (a child: deprivation of Liberty: Transition Plan) [2020] EWHC 3038 and most recently by Lieven J in Lincolnshire CC V TGA and others [2022] EWGC 2323 [20 – 22].
• While it had been argued that there was a risk of undermining article 5 EHCR in providing different regimes for children under and over 16 years, there were many instances where those under 16 were treated differently. The view of Lady Black in Re D had been that there had been a deliberate choice of the legislature to include children of 16-18 years of age within the scope of the MCA 2005 (amended by MCA 2007) to extend a regime of administrative safeguards to those over 16 years and that that indicated an appreciation of the different needs of the over 16s [23].
• In relation to children under 16, parental consent was permitted provided that this did not leave the child without safeguards. Parental responsibility must be exercised in the best interests of the child. What falls within the zone of parental responsibility is not limitless – see paragraph 55 Re L (above). As a matter of logic, any zone must have boundaries. Where the decisions taken by a holder of parental responsibility are not in the child’s best interests, there are safeguards. The measures include applying to the court to authorise the child’s deprivation of liberty where the parent does not exercise their parental responsibility and refuses to consent to deprivation of their child’s liberty which are necessary and proportionate to safeguard their child. Further if the decision were taken contrary to the child’s welfare, then if the local authority considered the relevant thresholds met, the local authority could apply for public law orders under Part IV and V of CA 1989 [24]. The state is under an obligation to take appropriate steps to safeguard the lives of those within its jurisdiction and to ensure that they are not subjected to torture or inhuman degrading treatment, including ill treatment administered by private individuals. If a parent were confining their child in a manner which amounted to inhuman degrading treatment or punishment, then the State in the guise of the local authority would need to act.[25].
• It agreed with Mrs Justice Lieven in the Lincolnshire case that when considering the zone of parental responsibility, it is more appropriate to consider the characteristics of the individual child in question than to compare them to a hypothetical child of the same age – TGA at para 27. The age of the child is relevant – see Re D [2015] EWHC 922 (Fam) at paragraph 56. But age is not the sole factor. Each child has their own unique characteristics. A 15-year-old may be highly intelligent and mature enough to make all decisions for herself. Another 15-year-old may lack the necessary degree of maturity and need a parent to make all decisions for them. Another 15-year-old may be mature enough to make some decisions for herself but not all. Children mature at different rates. They have the capacity to decide different issues at different times. The zone of parental responsibility constricts as the child is able to make decisions for themselves. Conversely, if the child is not Gillick competent then the zone of parental responsibility must remain relatively wide. Ultimately, what falls within the zone of the appropriate exercise of parental responsibility is fact specific. It is dependent on the decision to be taken and the individual child who is the subject of the decision. [27]
• O was 15 years old, not subject to any public law order or accommodated under s.20; her primary carer was her father. Her circumstances were significantly different to those of the children in Peterborough City Council v Mother & Others [2024] EWHC 493 (Fam) and as set out in Re V (Profound Disabilities) [2025] EWHC 200 (Fam) because O could physically exercise her right to liberty. [29]. Her father consented to the care, treatment and support provided and to confinement in three locations and was accepted to be making decisions which were in O’s best interests [30].
• Given O’s level of maturity and understanding, most parents would expect to continue to make decisions for her despite her age. In making decisions for O, they would consider her unique presentation and her individual needs. They would want to factor in the risks she poses to herself and others when taking steps to ensure her safety when she is not in parental care. That is what O’s father had done in her case, consenting to a package of care to meet her needs and to such confinement as was necessary to ensure she was safe when receiving that package outside his care. That was an appropriate and responsible exercise of parental responsibility [31].
• When providing care and treatment for O in the family home in the father’s presence, the agency staff’s involvement did not amount to a confinement within the first limb of the Storck Decision. When he was not available in the home or where O was taken into the community by the staff, there was a confinement, but it was an appropriate exercise of parental responsibility by her father to keep her safe when he was not available to supervise personally. He would otherwise be neglectful of her welfare interests. [32].

Points to consider:

1. This authority is useful at least for cases of “Community DOLS” where the local authority is providing significant support for a child under 16 years at home; such support is not necessarily a confinement for the purposes of Storck and, even where it is, it may well be covered by parental consent if in the interests of the child. It may be possible to take this further where there is a s.20 placement and active consent by the parent – there is already case law that supports longer term accommodation under s.20 without a need to share parental responsibility (S (A Child) and W (A Child) (s 20 Accommodation), 2023] EWCA Civ 1) – and see also the Lincolnshire decision above. While there may be confinement, is this attributable to the local authority or simply a legitimate delegation by the parent of their parental responsibility? The court may not have dealt with this directly, but is the provision of accommodation by the local authority to be treated differently from the use of respite care – and if so, then why? It is not clear that other Judges are following the rationale of Medway, Lincolnshire etc in section 20 cases. When the issue of consent was last revisited by the Court of Appeal in the Bath and North East Somerset case Re J [2025] EWCA Civ 478, there were submissions that consenting to the confinement of a child under the age of 16 years was beyond the scope of any parental responsibility (whether held by a parent or local authority) – the Court deliberately chose not to address the point [36]. It is easy to see why local authorities may continue to take a prudent approach while the matter remains unresolved in the higher courts.
2. The position appears to be unaltered for a child in the care of the local authority which will share parental responsibility and have the right to determine how far a parent can meet theirs. The local authority cannot itself provide consent irrespective of the age of the child (see the North East Somerset case above). Can it rely upon a parental consent that it is entitled to disregard where necessary in the interests of the child? Presumably not.
3. The authority does not affect the fundamental principle that neither the local authority nor the parent can provide consent when the child reaches the age of 16 (Re D [A child] [2019] UKSC 42).
4. While there is authority from the Peterborough case that there may not be a confinement in certain cases, it should be borne in mind that the child there did not have the physical capacity to attempt to leave; a very different scenario from this case and many others.
5. It would seem likely that the tricky area will require further consideration of children with long term disabilities where the restrictions are an integral part of their care, but where this is primarily provided by the local authority rather than simply a case of a carer being supported.

Graeme Bentley is a Principal Solicitor at Invicta Law and Accredited Member of the Law Society’s Children Panel.

Disclaimer: This article does not constitute legal advice and is provided for general information purposes only. Published 12 March 2026.