The Supreme Court has handed down its long-awaited decision in Re D, when it was asked:

“is it within the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of article 5?”

D’s case had been considered by the Court at first instance on 2 previous occasions-  first when he was 15 and when Keehan J concluded that the consent of his parents could be relied upon to deprive him of his liberty in a psychiatric hospital (Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam), [2016] 1 FLR 142) and secondly when he was 16 years old (Birmingham City Council v D [2016] EWCOP 8, [2016] PTSR 1129).  In this second case Keehan decided that parental consent (under s20 Children Act 1989) could not be relied upon to authorize an objective deprivation of D’s liberty in the community.  Keehan J further held that D’s living arrangements were imputable to the state in the form of the local authority who had taken the lead in finding the placement, designing it with the relevant health professionals and funding it.  

Sir James Munby upheld the local authority’s appeal.  You can read our post on the Court of Appeal decision here.

In the Supreme Court, the Official Solicitor appealed on D’s behalf and argued that:

“whatever may once have been the position at common law, no person can consent to the confinement of a child who has reached the age of 16 and lacks the capacity to decide for himself. If such a child is confined, and that confinement is attributable to the state, he is deprived of his liberty within the meaning of article 5 and there must be safeguards to ensure that the deprivation is lawful. The Mental Capacity Act 2005 provides a complete decision-making framework for the care and treatment of people aged 16 and above who lack the capacity to decide for themselves. His alternative case is that, even if such consent is within the scope of parental responsibility, the person giving it should apply the principles and procedure for deciding whether the arrangements are in the child’s best interests set out in section 4 of the Mental Capacity Act 2005.”

Birmingham City Council maintained the Court of Appeal’s decision was correct and consent to confinement of a 16-17-year-old who is not Gillick-competent is within the zone of parental responsibility.  The Equality and Human Rights Commission argued (as it had in the Court of Appeal) that this would violate Article 14 EHCR read with Article 5 and/or Article 8, as well as the provisions of the CRPD and CRC.

The Secretaries of State for Education and Justice argued that even if a child is confined a person with parental responsibility can consent to this if the child is not Gillick-competent.  

However, all agreed that a local authority with parental responsibility under a care order or interim order, or with other statutory responsibility for a child (such as an agreement under section 20 Children Act 1989 (CA 1989) cannot supply a valid consent.

The court’s first female majority (Lady Hale, Lady Black, allowed the appeal.  In examining the extent of parental responsibility, Lady Hale concluded that the combined effect of current and former legislation suggests that parental authority may well never have authorised deprivation of a child of her liberty once she had reached the “age of discretion” (§24-26).   

Keehan J was correct to find that children of 16 and over have a different status in law to those under 16; but this was not the full story.  A child may acquire capacity to make certain decisions for herself before the age of 16.  Lady Hale  noted that although parental responsibility may extend to decisions in relation to a child of any age who lacks capacity, this is subject to the powers of the court to intervene under Parts 2 and 4 of the CA 1989.  Turning to the impact of parental consent on the operation of Article 5A, Lady Hale stated that a person will be confined for the purpose of Article 5 by reference to the test in Cheshire West (§33): 

“The “acid test” is that a person is under continuous supervision and control and not free to leave. The fact that such restrictions may be necessary in order to prevent a person from harming himself or others makes no difference. Nor does the fact that the person’s living arrangements are as close to a normal home life as they could possibly be.”

The “crux of the matter” when applying this test to a child is set out by Lady Hale at §39:

“Do the restrictions fall within normal parental control for a child of this age or do they not? If they do, they will not fall within the scope of article 5; but if they go beyond the normal parental control, article 5 will apply (subject to the question of whether parental consent negates limb (b) of the Storck criteria, see para 42 below). Quite clearly, the degree of supervision and control to which D was subject while in Placement B and Placement C was not normal for a child of 16 or 17 years old. It would have amounted to a deprivation of liberty in the case of a child of that age who did not lack capacity. The question then arises what difference, if any, does D’s mental disability make?”

It is perhaps not surprising that Lady Hale rejected the “relative normality” argument as applied to disabled children, as she had in Cheshire West in relation to disabled adults, in unambiguous terms:

“It follows that a mentally disabled child who is subject to a level of control beyond that which is normal for a child of his age has been confined within the meaning of article 5. Limb (a) of the three Storck criteria for a deprivation of liberty (see para 1 above) has been met.”

Lady Hale agreed with Keehan J that judgments of the European Court of Human Rights are “very far from adopting a general principle of substituted consent” and concluded that parental responsibility cannot substitute for the “subjective element” of deprivation of liberty.

It was common ground that D’s arrangements were “imputable to the State” and Lady Hale commented  (§43, emphasis added) that 

“it is clear that the first sentence of article 5 imposes a positive obligation on the State to protect a person from interferences with liberty carried out by private persons, at least if it knew or ought to have known of this: see, for example Storck, para 89”.

This clarified the position as far as the child’s rights in relation to the State.  Furthermore, the state has positive obligations to intervene where a parent, or a private person acting on their behalf, is the detainer; nor can a parent authorise the state to detain the child.  As Lady Hale noted, D’s rights were protected by the Court of Protection and in future the new Liberty Protection Safeguards will apply to children of 16 and over who lack capacity to consent to “the arrangements” which give rise to a deprivation of liberty.  Importantly Lady Hale indicated that:

“Logically, this conclusion would also apply to a younger child whose liberty was restricted to an extent which was not normal for a child of his age, but that question does not arise in this case. The common law may draw a sharp distinction, in relation to the deprivation of liberty, between those who have reached the age of 16 and those who have not, but the extent to which that affects the analysis under the Human Rights Act is not clear to me and we have heard no argument upon it. I therefore prefer to express no view upon the question. Nor would I express any view on the extent of parental responsibility in relation to other matters, such as serious and irreversible medical treatment, which do not entail a deprivation of liberty.”

These issues may well return as “unfinished business”.  

Lady Black considered common law authorities going back to the 19th century, and noted that (§56):

“What is important about the decisions for present purposes is that they establish, as the common law position, that (i) up to the age of discretion, the parent’s right to restrict the child’s liberty was absolute (subject to some very limited exceptions), (ii) once the child reached the age of discretion, that right disappeared, and (iii) reaching the age of discretion was a matter of attaining the requisite chronological age, and not a matter of mental capacity.”

The Court of Appeal had treated Gillick as replacing the fixed “age of discretion” with the test of “Gillick capacity”.  Like Lady Hale, Lady Black did not agree that the Gillick test applied to the aspect of parental responsibility raised in this case- that of physical liberty.  She noted that the power to deprive of liberty is given “special treatment” in both the CA 1989 and the Mental Capacity Act 2005 (MCA 2005).  

Although the MCA 2005 does not replace the CA 1989 in relation to those of 16 and upwards who lack capacity, the deliberate choice of 16 for the application of the MCA 2005 

“indicates an appreciation of the different needs of this particular age group.”

In relation to the Court of Appeal’s reliance on Gillick, Lady Black concluded:

“I accept that certain things that were said in Gillick were capable of being interpreted as applying to a situation such as the present, but it would not, in my view, be appropriate to interpret them in that way, so as to draw into the Gillick net a situation which is diametrically opposed to that with which the House was concerned (not the tempering of parental responsibility in relation to the under 16 age group, but its expansion in relation to those aged 16 and 17 so as to give it a role which would not otherwise be afforded by the common law). My unwillingness to adopt this interpretation is reinforced by what I perceive to be the distinct, and rather special, features of the field of deprivation of liberty with which we are here concerned. It follows that the rights of a parent in relation to restricting the liberty of a child remain, at common law, as described in Hewer v Bryant. The inescapable result of that is, I think, that it is not within the scope of parental responsibility for parents to give authority for their 16-year-old child to be confined in a way which would, absent consent, amount to a deprivation of liberty.”

Lady Black preferred to leave “entirely open” the question of children under 16.  She added that 

“nothing that I have said is intended to cast any doubt on the powers of the courts, recognised in the early cases to which I have referred, and still available today in both the parens patriae jurisdiction and under statute, notably the Children Act 1989, to make orders in the best interests of children up to the age of majority, with due regard to their wishes and those of their parents, but not dictated by them.”

Importantly Lady Black noted that- by operation of Regulation 7, Children (Secure Accommodation) Regulations 1991 (SI 1991/1505– the use of Section 25 CA 1989 is not limited to those children who are “looked after”.  Section 25 can also cover children who are accommodated in care homes or independent hospitals, where this is accommodation that is “provided for the purpose of restricting liberty” (section 25(1) CA 1989) and where the criteria of section 25 are met.  Lady Black expressed real concern as to whether only accommodation which had been approved by the Secretary of State for that purpose could fall within section 25(1) CA 1989.  Given the shortage of approved accommodation this gives rise to a real risk that a child might find herself doubly prejudiced: by being in an unapproved accommodation and outside the strict criteria of section 25.  

In raising this concern, she expressed some anxiety about the use of the use of the inherent jurisdiction to restrict a child’s liberty in an unapproved home.  Without reaching a concluded view, Lady Black indicated (at §113) that:

“The exercise in which we have engaged has, however, been sufficient to persuade us that section 25 is not intended to be widely interpreted, so as to catch all children whose care needs are being met in accommodation where there is a degree of restriction of their liberty, even amounting to a deprivation of liberty. There is much force in the argument that it is upon the accommodation itself that the spotlight should be turned, when determining whether particular accommodation is secure accommodation, rather than upon the attributes of the care of the child in question. This fits with the language used in section 25(1), when read as a whole. It is also consistent with the objective of ensuring that the section is not so widely drawn as to prejudice the local authority’s ability to offer children the care that they need, and it ought to make it more straightforward to apply than would be the case if the issue were dependent upon the features of a child’s individual care regime, so that the child might be found to be in secure accommodation in all manner of settings.”

Lady Arden re-affirmed the distinction in R (Ferreira) v Inner South London Senior Coroner that there will be cases where a person loses their liberty but the “acid test” does not apply, the difference here being that this case concerns living arrangements rather than life-saving emergency medical treatment. This issue has also arisen in some medical treatment cases concerning young children, for example in the unsuccessful attempt to appeal to the Supreme Court by the parents of Alfie Evans: see comments of Lady Hale refusing permission here. Like Lady Black, whose judgment she described as “laying down a marker for the future” (at §120) , Lady Arden preferred to leave the question of the extent of section 25 open.

Lord Carnwath gave a dissenting judgment with which Lord Lloyd-Jones agreed.  Lord Carnwath did not accept that the fact that the MCA 2005 applied to children of 16 implied any change to the limits of parental responsibility: Parliament does not change the law by implication.  He noted that the European Court had not departed from the interpretation of Nielsen v Denmark as concerning the “responsible exercise by the applicant’s mother of her custodial rights”.   

He doubted the interpretation by Lady Black of the limits of the Gillick judgment and would have allowed the appeal.

Comment:

The implications of the judgment will be far-reaching and may need time to emerge in full.  On an initial view they include the following:-

Local authorities will not be able to rely on parental consent for care arrangements which will give rise to a deprivation of the liberty of a child of 16 and above.   

If such cases do not fall within the scope of section 25 CA 1989, they will require an application to the Court.  As Lady Hale and Lord Carnwath noted, such cases can – on the face of it- be authorised under the “Liberty Protection Safeguards” once the Mental Capacity (Amendment) Act 2019 (“MCAA 2019”) comes into force.  

However, local authorities will need to consider whether there are any restrictions which are not “care arrangements” and which require separate authorisation.   Following the first instance judgments in Re A, Re B and the Court of Appeals judgment in Re B, restrictions on the use of the internet and social media are not a “subset” of care (see §25, Re A).

The guidance in the Mental Health Act 1983 Code of Practice was prepared after the judgment in Cheshire West but before the first judgment in the current case.  The guidance notes at 19.48 that practitioners should “consider and apply developments in case law” in relation whether parents can consent to admission of 16-17-year olds which would involve a deprivation of liberty, and advises seeking legal advice in all such cases.  This can now be clarified.

The “unfinished business” left by the judgment includes the position of children under the age of 16.  Given the comments of Lady Hale, it is suggested that at the very least a cautious approach is required in relying on parental consent to any care arrangements which give rise to a deprivation of liberty of those under the age of 16, particularly those closer to the “cut-off”.   The reach of section 25 CA 1989 is clearly a matter which is likely to require further consideration by the courts.