1) What authority in Devon does an administrative court have to make decisions regarding offspring (those aged 0-18) being subjects of Deprivation of Liberty Orders ( DOLS)?
Please note that we have assumed that the references to “offspring” refers to children and young people under the age of 18.
The DoLS legal framework only applies to individuals 18 years old and over. People aged 18yrs and over are eligible to have any deprivation of their liberty authorised by the Deprivation of Liberty Safeguards (DoLS) legal framework.
Young people aged 16 and 17 are not eligible to have any deprivation of their liberty authorised by the Deprivation of Liberty Safeguards (DoLS) legal framework. If an individual is 16 or 17 years old and is experiencing a deprivation of their liberty, an application would need to be made to the Court of Protection for the Court to consider authorisation under the wider provisions of the Mental Capacity Act (2005). Children under the age of 16 may be subject to a deprivation of their liberty with the permission of person with parental responsibility or by virtue of the exercise of the inherent jurisdiction of the High Court.
2) For the years individually of 2017-2023, how many DOLS were properly authorised by the county council in relation to offspring being subjects of DOLS?
As set out above, the deprivation of liberty for a child or young person under the age of 18 may only be authorised by a court or a person with parental responsibility. The Council has therefore not authorised any DoLS in relation to children or young people. In relation to 18 year olds only, the following numbers of DoLS Standard Authorisation requests which were authorised during the period requested are:
| 2017-18 | 2 |
| 2018-19 | 1 |
| 2019-20 | 1 |
| 2020-21 | 1 |
| 2021-22 | 1 |
| 2022-23 | 2 |
3) Does the order to deprive a child or young adult of its liberty come first, or the question to ask that young child or adult as to whether they agree to it?
For a deprivation of liberty to be occurring the ‘Acid Test’ as outlined by the Supreme Court in P v Cheshire West and Chester Council and another and P and Q v Surrey County Council needs to be met. One of the criteria is that the individual concerned lacks the mental capacity to consent to their care / treatment arrangements. Therefore, for an adult, although their wishes and feelings should always be sought and taken into account they would not be able to validly consent / agree to those arrangements. Similarly, the views of a young person aged 16 or 17 would be sought prior to any application to a court.