Table test

Age of child or young person Consent of person with parental responsibility Court of Protection Children Act 1989, section 25 secure order Deprivation of Liberty Safeguards (DoLS) Mental Health Act 1983 High Court (inherent jurisdiction)
15 or under Yes – but see notes below. No Yes – but see notes below. No Yes – but the child needs to meet the criteria for the MHA and the placement must be authorised to accept MHA detentions. Yes. This is a fallback option when others are not available.
16-17 Yes - but see notes below. Yes – in any placement if the person lacks capacity. Yes No Yes – but the child needs to meet the criteria for the MHA and the placement must be authorised to accept MHA detentions. Yes. This is a fallback option when others are not available.
18 and over No Yes – in any placement (but not normally necessary in a placement covered by DoLS) if the person lacks capacity. No Yes – but only if the person is living in a care home or hospital and lacks capacity. Yes – but the person needs to meet the criteria for the MHA and the placement must be authorised to accept MHA detentions. Yes. This is a fallback option when others are not available.

Notes:
Parental consent – if a child under 16 is not under a formal care order a local authority may in some cases rely on parental consent if it is given in the proper exercise of parental responsibility. Technically in law such consent would mean the restrictive care arrangements were not a deprivation of liberty for the purposes of article 5 of the European Convention on Human Rights. If an accommodated child under the age of 16 is the subject of an interim care order or a care order, it is extremely unlikely that a parent could consent, and in those circumstances a local authority cannot consent to a deprivation of liberty so court authorisation is required (A Local Authority v D and others [2015] EWHC 3125 (Fam).

A secure order under section 25 of the Children Act 1989, underpinned by the need to prevent significant harm, applies only to looked-after children (under a care order or voluntarily accommodated under section 20 of the Children Act) and where the purpose of the accommodation is to restrict liberty. If the child were to be accommodated in a children’s home (a registered children’s home, a community home, or a voluntary home), the home would require the approval of the secretary of state, or in Wales the Welsh Government, for such use. In addition, a child under 13 years of age requires Secretary of State or Welsh Government approval.