B e f o r e :
MR JUSTICE MOSTYN (In Private) ____________________
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MISS A. MEUSZ (instructed by the Legal Department) appeared on behalf of the Claimant. THE FIRST AND SECOND RESPONDENTS were not represented. MR A. LAING (instructed by Duncan Lewis) appeared on behalf of the Third Respondent. MR J. HUSSELL appeared on behalf of the Guardian. ____________________
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MR JUSTICE MOSTYN:
This judgment follows on from my previous judgment given on 23 rd January 2018 which has the neutral citation number [2018] EWHC 576 (Fam) . It is not necessary for me to detail any of the facts that is set out in that judgment. It may be that if anybody were reading this second judgment of mine, they would be assisted if they were first to read my earlier judgment.
In my earlier judgment, I decided that what I will call the "Storck component (b)" is satisfied, that is to say there is an absence of consent if the court can conclude that the consent that is purportedly being given by the child in question is neither authentic or enduring.
That decision of mine has been appealed and permission to appeal was granted by Peter Jackson LJ on 19 th March 2018 under the second limb, namely that there were compelling reasons for an appeal to be heard. I have noted that in the skeleton argument in support of the proposed appeal, an analogue in relation to the consent to sex was made; similarly, an analogue with the formation of a commercial contract was made. It will be for the Court of Appeal to decide whether these analogues have any relevance at all to the consent which, is in fact, in play. I would point out that a person at the age of the child with which I am concerned cannot consent to sex or form a contract, so the relevance of those analogues at the moment presently escapes me.
In my judgment, the view that I took that the consent in question has to be found to be both authentic and enduring is well borne out by the subsequent events. I cite from the witness statement made by a social worker on behalf of the Local Authority dated 16 th March 2018. At para.10 it says this:
Three days after that, the placement of the child completely broke down and she was moved to a new placement in the Midlands. She is content and compliant at that placement. Everyone hopes that this new placement will represent a success for her and that improvements can be made in her mental rehabilitation.
The consequence of this is that the order that I made authorising her detention at the previous placement has been overtaken by events. That order will therefore be discharged and replaced by a fresh order made by me today. The consequence of that is that the order in respect of which permission to appeal has been granted by Peter Jackson LJ no longer exists and that appeal becomes redundant. However, in view of the fact that I intend to adopt the same legal reasoning in respect of this fresh placement will, no doubt, lead the child to seek permission to appeal this new order, notwithstanding that the point of this exercise entirely escapes me.
There is agreement that the first and third Storck components are engaged at this new placement in the Midlands. The child is being objectively confined, she is not in any realistic sense free to leave and her confinement is at the behest of the State. The issue, once again, is whether she authentically consents.
On the last occasion in my judgment I held that the consent, as I have said, can only be found to exist where it is authentic and enduring. That I was correct in that determination is demonstrated by the subsequent events. Notwithstanding that the child on the last occasion expressed to me, seemingly authentic consent, subsequent events show that within a relatively short period of time, that consent was not genuinely expressed because the events which I have set out occurred.
For these reasons, I am satisfied once again, even more satisfied than I was on the previous occasion, that the deprivation of liberty declaration should be given, granting the Local Authority the powers and protections which I have mentioned in my previous judgment.
I have asked, if I were not to make this declaration, what position would the Local Authority and, indeed, the child be left in? She would not be in a position of formal state detention with the powers and protections that attach to that. She would, on the face of it, be free to leave her present placement, although the consequences would be that she would then become an officially missing person and the Local Authority could summon police assistance to bring her back to base, but there will be nothing to prevent her leaving again almost instantly, a situation that is almost too absurd to contemplate as a consequence that the law intends to apply.
For these orders, therefore, I make an equivalent order to the one that I made on the last occasion in relation to this new placement. For the avoidance of any doubt and in anticipation of an application for leave to appeal, I refuse leave to appeal on the same basis that I did on the last occasion, namely that I see no prospect of an appeal succeeding and, with all due respect to Peter Jackson LJ, I can see myself no compelling reason for the appeal to be heard.
I will authorise the bespeaking with expedition of a transcript of the judgment I have just given at public expense.