The legal issues arising where children are detained without using the formal mechanism of the Mental Health Act has been subject to debate and litigation over recent years and the Court of Appeal is still due to decide whether a parent can consent to detention, and if so, whether this applies to children under 16, over 16 or both following the decisions in Birmingham City Council v D.
However, the Court of Protection has recently considered whether a child can consent to its own liberty deprivation.
A 15 year old was subject to a Care Order. He lived in a residential unit where he was subject to 1:1 staffing, constant observations and numerous occasions where doors were locked. He could not leave unsupervised or without permission and was monitored during any leave. Internet and telephone access was limited.
The local authority applied to the Court of Protection for authorisation in respect of what it accepted amounted to a deprivation of liberty.
The Court accepted that this care regime amounted to a deprivation of liberty. The child consented to this and the question was whether this was possible.
The Court held that the child was of sufficient understanding and intelligence to understand the regime and was competent under the Gillick test.
The Court also accepted that the child did in fact consent to the regime and that therefore the Court had no power under its inherent jurisdiction to authorise this.
The Court also considered whether it could have authorised the deprivation of liberty if the child had not consented. Although the Official Solicitor contested this, the Court held, although obiter, that the inherent jurisdiction could be used to authorise a deprivation of liberty in such circumstances.
The whole area of the detention of children requires full consideration by the Court. The Court of Appeal decision in Birmingham CC v D may assist with this.
For the moment however, this decision does seem to contrast somewhat starkly with the decision in the MM case.