ERYC v The Mother & Ors [2026] EWHC 181 (Fam) – Parental Responsibility In Providing Valid Consent
news
11/02/2026
East Riding of Yorkshire Council v The Mother & Ors [2026] EWHC 181 (Fam)
Jess Harrison examines the decision of Henke J in ERYC v The Mother & Ors; a significant judgment which provides helpful and clear guidance on the scope of the zone of parental responsibility in providing valid consent for what would otherwise be a deprivation of liberty of children aged under 16 years old.
Jacqueline Thomas KC leading Jessica Harrison, represented the Guardian, instructed by Burstalls Solicitors.
Brett Davies appeared for the Local Authority.
Full judgment: East Riding of Yorkshire Council v The Mother & Ors – Find Case Law – The National Archives
Author
Background to the Case
The background to this case concerns L, a twelve-year-old girl who has autism with significant sensory processing needs. She can display a high level of emotional dysregulation, aggression and violence when her fixed views are not acted upon. On 13 February 2025, L’s parents made the decision that L’s needs would be best met by her being placed in accommodation provided by the local authority and on 7 April 2025 L was placed at Pink Paradise School pursuant to section 20 Children Act 1989.
Throughout the summer of 2025, L’s presentation deteriorated, she refused to leave her bed, and this coincided with an Ofsted visit resulting in the school being rated inadequate. The local authority had found an appropriate placement for L at Rainbow Cottage, a solo Ofsted-registered children’s home, offering 2:1 staffing. Accordingly, they made an application to the court for an order within the inherent jurisdiction to authorise them to transport L to Rainbow Cottage.
The matter initially came before HHJ Wildblood KC on 8 October 2025 who permitted the local authority to invoke the inherent jurisdiction under s.100 Children Act 1989, to transport L to Rainbow Cottage. Thereafter the matter came back before HHJ Wildblood KC before being adjourned for consideration at this hearing to determine “the issue of whether it is lawful, or not, for ERYC to rely on consent given by L’s mother for the ongoing arrangements for the care and support of L in circumstances where such arrangements amount to an objective deprivation of liberty”.
The restrictions in place at Rainbow Cottage were accepted by all parties to amount to an objective deprivation of L’s liberty, satisfying limb (a) of the Storck criteria. The restrictions in place were as follows:
- Continuous supervision on a 2:1 basis always in the home and the community day and night. She is never left alone without staff nearby, even when she requests space. Staff may prop her door open and maintain visual checks to ensure safety
- Use of Team Teach behaviour support (physical intervention) when necessary and in line with approved techniques by appropriately trained staff in the following circumstances:
- To prevent L causing harm to herself and others. For example, when L is stuck and unable to move, intervention is required to help her from this disabling element of her needs.
- To prevent L leaving the placement of her own accord to keep her safe and for the purposes of transport to and from the placement and educational provisions/appointments.
- To return L to the placement if she absconds.
- Restricted movement within the home:
- The outside gate (operated with a fob) to be locked at all times.
- The external doors to be locked unless L is outside with staff or entering/leaving the building.
- The locking of the door from the dining room to the kitchen while staff are cooking and preparing food to avoid L hurting or scalding herself.
The restrictions which are in place and which the local authority say are related to her care are as follows:
- Use of Team Teach behaviour support (physical intervention) when necessary and in line with approved techniques (Team Teach) by appropriately trained staff in the following circumstances. L at times requires physical restraint to remove her from situations that may cause her physical harm.
- Assistance with bathing and dressing when refusal to do this herself. An example on 13th October 2025, L smeared her faeces head to toe and refused to get cleaned. L was then supported by the staff to clean due to the excessive amount of faeces and the health implications of this.
- L may refuse to change soiled clothing or engage in hygiene routines. Staff are authorised to intervene physically if her skin integrity or health is at risk, including strip washing and changing her clothing when she is unable or unwilling to do so herself.
Although physical intervention is used as a last resort, it is said to be needed at times to maintain L’s safety.
There were three examples before the Court of when physical intervention had been necessary since the time that L was placed at Rainbow Cottage which included one occasion where she had remained in a bath for over an hour after it had gone cold; refusing to leave the dining room after urinating on the floor and engaging in unsafe behaviours; and being unable to transition from the Children’s Centre in November 2025, remaining in a public area for 45 minutes despite multiple de-escalation techniques being used.
Legal Framework
Within her judgment, Henke J undertakes a thorough analysis of the legal framework and case law in relation to this precise issue. Importantly, within her analysis, Henke J concludes that whilst Lady Hale and Lady Black in Re D [2019] UKSC commented on the position in relation to children under 16, they did not determine the issue. Therefore, the judgment of Keehan J in Re D [2015] EWHC 922 (Fam) still stands, in which he considered the relevant comparator and concluded:
[57] The decisions which might be said to come within the zone of parental responsibility for a 15-year-old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15-year-old son suffers with D’s disabilities. Thus, a decision to keep such a 15-year-old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15-year-old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.
[58] The parents of this young man are making decisions, of which he is incapable, in the welfare best interests of their son. It is necessary for them to do so to protect him and to provide him with the help and support he needs.
The present judgment also provides a useful analysis of the case law which has followed the Re D [2015] decision and also considers the issue of physical restraint and the role of Regulation 20 of the Children’s Homes (England) Regulations 2015 in relation to this.
Guidance
The critical point the Court was grappling with in this case was whether the restrictions imposed upon the 12-year-old child, L, fell within the remit of consent in the reasonable exercise of parental responsibility, and crucially, whether there are elements within the restrictions which are so restrictive that fall outside what would be expected for a parent to consent to in the course of exercising parental responsibility.
Within her judgment Henke J concludes that the restrictions imposed upon L were deemed to fall within the zone of parental responsibility and the safeguard which a court authorisation may be seen to provide can just as adequately be provided by parents in providing consent to the same, provided that those parents actions are in accordance with the best interests of the child; at §62:
It is argued that without prior court authorisation, there is no objective judge of proportionality and necessity. There would be no court consideration of the restraints to be used and how they would be used or indeed any of the other restrictions her parents have agreed. That is true. However, there is no need for a court process here because in L’s case her parents are acting in her best interests. They are consenting to that which all agree is necessary and proportionate. L’s parents know her and her unique presentations better than anyone. They have watched her grow up and until early last year cared for her daily. They thus are in many ways better placed to make the decision about what is necessary and proportionate for their daughter than others.
A key factor in determining the necessity, or otherwise, of having court authorisation was that L’s parents were exercising their parental responsibility in accordance with her best interests and no party sought to persuade the Court otherwise; it was common ground that L’s parents had always acted with her best interests at the forefront of their decision making. Within this case, the local authority had obtained and provided the Court with a copy of a signed document from L’s parents, giving their specific authorisation to each of the restrictions in place for L. The document also included within it a commitment to reviewing the restrictions in place for L every six months as a minimum. As such, there was no ambiguity as to what L’s parents were aware of in regard to the restrictions, they were providing their consent to. Henke J recognised and considered this at [53] and [57] of her judgment:
[53] L’s parents have actively engaged with the local authority which is providing care and support for their daughter under s.17 CA 1989. They have engaged with the planning process and communicate regularly with L’s social worker. They also engage with the staff at Rainbow Cottage about the day-to-day care L receives. They advocate for their daughter and where appropriate, they provide challenge.
…
[57] Any parent of a 12-year-old would expect to take decisions to enable their child to be protected and would regard such decisions as coming within their zone of parental responsibility. Any parent when considering how to ensure their child’s safety would take into account that child’s behaviours and presentation and the risks that flow from them. That is exactly what L’s parents have done here. In this case, L’s parents have given their consent to the elements of her plan which amount to confinement within Storck limb (a). They have done so to ensure her care needs are met and that whilst she is accommodated away from them, she is safe. The decisions they have taken in that regard are acknowledged to be in L’s best interests.
Significance
This judgment has been well received in providing further clarity and guidance in the somewhat ambiguous area of where a court authorised DOL is required in cases concerning children under 16. Henke J has provided an analytical and well-reasoned judgment which considers in detail the relevant legal framework and addresses the critical question which was left open by the Supreme Court in Re D.
The judgment gives clear guidance not only on the appropriateness for relying upon the zone of parental responsibility and the extent that this can provide valid consent to what would otherwise be a deprivation of liberty for a child of L’s age, but also addresses Regulation 20 of the Children’s Homes (England) Regulations 2015 and, importantly, determined that the ambit of Regulation 20 did not extend to capture the purpose of restraint and circumstances in which restraint may be used for L.
A useful point of guidance for local authority’s where restrictions are authorised by parents exercising parental responsibility is the written agreement. There is no legal requirement that there be a written agreement (similar to the position in respect of ‘section 20 agreements’), but the written agreement will focus minds and avoid ambiguity in what the parent is authorising. It should spell out each and every restriction; it should set out when the restrictions will be reviewed and how; it should be made clear to the parent – as was emphasised here by Henke J. that consent is not carte blanche, the parent may consent to some, but not all of the restrictions (and if the authority seek to impose restrictions which a parent does not agree, then an application to the court will be required in any event). Likewise, as the parent continues to monitor the care arrangements for their child, the parent might consider that some restrictions are no longer required, and might withdraw consent to specific restrictions as an exercise of parental responsibility in the future.
Although specific guidance was not spelled out in this case, where there are reviews, perhaps every 6 months, and written agreements are being used, there will be an expectation that the agreement is renewed – and signed again (or approved – an email from the parent confirming their agreement to a clear schedule of restrictions will no doubt suffice), by the parent at each review.
This case also illustrates the readiness of the court to grapple with the question of whether or not restrictions, which amount to a deprivation of liberty in their totality, fall within the scope of parental responsibility. An authority may apply if it is unsure, and ask that question – does this local authority need to permission to invoke the inherent jurisdiction on the facts of the specific case, or not. Henke J granted ERYC a declaration confirming that the restrictions for L did fall within the zone of parental responsibility, so there the legal position is clear.
