Navigating DOLS and 17-year-olds not in care
- Details
The High Court recently reviewed a local authority's application of Deprivation of Liberty Safeguards (DoLS) for a 17-year-old who was not under a care order. Graeme Bentley explores the important insights from the case, touching on the legal framework, the child's autonomy, and the role of parental consent in such situations.
In the recent case of Kent CC v Mother [2025] EWHC 1974, Henke J takes the opportunity to review the law on DoLS for 17-year-olds who are not on care orders but accommodated instead. [1]
Background
The case involved a 17-year-old named G who had a history of moving between different types of placements and exhibiting behaviours that put him at risk of harm, including threats of self-harm and suicide.
G had lived with his mother and then his father before agreeing to his own accommodation in March 2024. Estranged from his parents, G did not wish them to know of his living arrangements. While his mother agreed under section 20 of the Children Act 1989, his father did not. Kent County Council sought DoLS because there had been a number of different types of placements and a cycle of G becoming dissatisfied and then absconding to random locations, attending hospital and threatening to harm or kill himself. Kent was concerned that there was a genuine risk of G unintentionally causing himself significant harm or even killing himself. At the time of the application, G was in a hospital ward having admitted himself as a voluntary patient. Kent wanted to move him to a residential therapeutic placement against his will.
The Court’s Decision
The Judge immediately raised concerns about how any DoLS was going to work if G withdrew his consent to accommodation but initially made a DoLS order that enabled his continued detention in the hospital. Subsequently, an application was made to ward G and to restrict disclosure to his parents.
Despite detailed argument from counsel, G, supported by the Guardian and his solicitor, opposed the Local Authority’s plans, seeking semi-independent living. He was both Gillick competent and eloquent enough to put his own arguments before the Court. Kent remained concerned at the cycle of events and continued to push for the residential therapeutic placement. G could not stay in hospital any longer. This was not a case for compulsory MHA detention. G made it clear that he would consent to being accommodated but not if forced to move to the therapeutic placement.
The Court determined that the wardship should continue but that the DoLS should be dismissed, agreeing with the Guardian that there was no jurisdiction to make the order.
The legal argument, starting at paragraph [34] and concluding at [50], essentially says:
- (Undisputed that) use of inherent jurisdiction must not offend section 100(2)(b) Children Act 1989 - (2) No court shall exercise the High Court's inherent jurisdiction with respect to children … (b) so as to require a child to be accommodated by or on behalf of a local authority;
- Mother’s consent was not informed, and Father did not consent at all and under s.20(9) and (10) Children Act 1989. This meant that G could not be accommodated with parental consent; even if Mother gave a valid consent, Father could remove without notice at any time. As such, it was right for Kent to rely upon G’s own consent under s.20 [54].
- CA 1989 s20(6) (which requires the Local Authority (LA) before accommodating a child to ascertain the child’s wishes and feelings and to give due regard to them so far as reasonably practical and consistent with welfare) does not enable G to dictate his placement – but it enables him to take an informed decision on consent which he is free to withdraw if he wishes [57].
- By accommodating G, the LA is offering him a service, but accommodation is not compulsory so as to require the sanction of a court process (Williams v Hackney decision of the Supreme Court applied in this regard) [57].
- The reality of the DoLS application is that it seeks to take G somewhere against his will and to confine him there even though he does not give s.20 consent – section 20 is not to be used coercively (applying Hedley J in the Coventry City Council case) [58].
- The inherent jurisdiction should not be used to compel s.20 accommodation and is effectively seeking to take G into care against the statutory scheme. Parliament chose to curtail the court’s jurisdiction to make care orders for 17-year-olds (applying Knowles J in Re Q) [58].
- The primary purpose of the DoLS application was to compel G to be accommodated against his will which offends against the statutory scheme and CA 1989 s.100(2) in particular [59-60].
- Even if the above were wrong, a best interests decision as to whether the restrictions were lawful, necessary and proportionate to the risk of harm would not have been made. G, being 17 and competent, had given consent to accommodation and to admission to hospital, was prepared to accept home treatment for his wellbeing and to engage with CAMHS. He had not acted on expressed suicidal ideation since September 2024. The hospital had not needed to act on the restrictions while he was there under the earlier DoLS. He had made a reasoned and reasonable decision as to the type of accommodation that he will accept [62-63].
This case highlights the legal considerations involved in accommodating 17-year-olds under DoLS, particularly when they are not on care orders but instead are accommodated with their own consent.
Key takeaways
- The case provides guidance on the application of DoLS for 17-year-olds who are not on care orders but are instead accommodated with their own consent. It is a reminder, when considering the need for care proceedings for children under 17 years, of the complications that can subsequently arise if the LA does not obtain parental responsibility lasting until adulthood (or earlier discharge of a care order).
- The case highlights the court's use of inherent jurisdiction and its boundaries, as defined in section 100(2)(b) of the Children Act 1989.
- The problem of compelling accommodation arrangements for a child over 16 years who has authorised their own accommodation under s.20 is likewise highlighted. It is worth remembering that in the case of A City Council v LS, RE and KS (A Child) [2019] EWHC 1836, a LA with the gravest of concerns for the welfare of a 17-year-old child was found to be unable to use the inherent jurisdiction to protect them in the absence of an effective s.20 consent from either the child or his parents. Though it should be highlighted that the prohibition of s.20(7) relates to parental objection rather than consent.
Graeme Bentley is Principal Solicitor in Invicta Law’s Child Protection team and an Accredited Member of the Law Society’s Children Panel.
[1] As you will know, we cannot get a care order for a 17-year-old, but any final care order made before they reach 17 years lasts until their 18th birthday (NB if the case is still in progress when they reach 17, any ICO will automatically lapse though the court can still give case management directions).