Liberty, capacity and the age boundary: section 20 and deprivation of liberty for 16- and 17-year-olds

James Dove, Harcourt Chambers

This article examines the increasingly fraught boundary between child welfare powers and capacity law when local authorities seek to restrict the liberty of 16- and 17-year-olds. It explains how any deprivation of liberty must be authorised through a recognised legal route, and why the interaction between the Children Act 1989 and the Mental Capacity Act 2005 produces an uneven, and sometimes incoherent, framework.

The central difficulty arises at 17. Section 31(3) prevents the making of new care orders after a young person’s seventeenth birthday, and s 25 secure accommodation is available only for looked-after children. The result is a statutory gap where vulnerable, capacitous 17-year-olds who refuse consent cannot lawfully be detained for welfare purposes, even where risks are grave.

The article traces key authorities including Cheshire West, Re D, Williams, LS and Re G, illustrating the limits of parental responsibility, s 20 consent, and the inherent jurisdiction.

It concludes with practical guidance for local authorities and considers proposed reforms under the Children’s Wellbeing and Schools Bill, while arguing that the age boundary problem remains unresolved.

The full article has published in the March issue of Family Law.  Find out more or request a free 1-week trial of Family Law journal. Please quote: 100482

Read the full article here.