Key facts

The Supreme Court has held that in circumstances where 16/17-year olds lack capacity to consent to arrangements that amount to a deprivation of liberty, parental authority cannot be used to authorise their deprivation of liberty.

Background

D was born on 23 April 1999. During his early childhood he was diagnosed with attention deficit hyperactivity disorder, Asperger’s syndrome, Tourette’s syndrome and a mild learning disability. His parents struggled to care for him. In October 2013 at the age of 14 he was admitted to a hospital which provided mental health services for treatment and assessment. He lived and attended school within the hospital grounds and was unable to leave at will and was accompanied whenever he left the site.

In 2014, the hospital trust applied to the High Court for a declaration that it was lawful for the trust to deprive D of his liberty and that it was in his best interests. In March 2015, Judge Keehan held that D was living in conditions that amounted to depriving him of his liberty but that it was a proper exercise of parental responsibility to keep him under constant supervision and control while he was under the age of 16. D was discharged to a residential placement where he was under constant supervision and unable to leave except for planned activity with his parents’ agreement.

On his 16th birthday, proceedings were issued in the Court of Protection for a declaration that he would not be deprived of his liberty at the placement because of his parents’ consent to the same.

The application was heard by Judge Keehan in the Court of Protection in November 2015. In January 2016, he held that the parents could no longer consent to what would otherwise be a deprivation of liberty now that D had reached 16 and the MCA2005 applied to those who had reached 16 and that the deprivation of liberty was attributable to the state.

The Council appealed to the Court of Appeal who overturned his decision. The Supreme Court has now allowed the Official Solicitor’s appeal on behalf of D declaring that D was at the material times to be seen as deprived of his liberty for the purposes of Article 5 ECHR.

The Majority

Lady Hale concluded that the effect of Article 5 ECHR and the interaction between parental responsibility and the child’s rights under Article 5 made it unnecessary to reach a conclusion. She stated that Article 5 protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty.

At paragraph 39, she states:

“Whether 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”)

She also concluded that the accommodation of D in the two placements did amount to a deprivation of liberty within the meaning of Article 5, and the fact that his parents agreed did not rob the arrangements of this quality. The procedural requirements of Article 5 applied and his rights under Article 5 were not violated. It was also not within the scope of parental responsibility for D’s parents to consent to a placement which deprived him of his liberty.

Lady Black held, as a matter of common law, parental responsibility for a child aged 16 or 17 does not extend to authorising the confinement of a child in circumstances that would otherwise amount to a deprivation of liberty.

Comments

This Judgment indicates that authorisation will be required where a 16 or 17-year old is subject to a regime that amounts to a deprivation of liberty. Parental Consent would not extend to providing consent to arrangements which effectively result in the confinement of that young person.

The current position for authorisation of deprivation of liberty for 16 or 17-year olds who lack capacity to consent to those arrangements is via application to the Court of Protection (or potentially under the Inherent Jurisdiction).

The LPS scheme, due to come into force on or after 1 October 2020, should remove the requirement to apply to the Court for authorisation of a deprivation of liberty relating to a young person aged 16 years or over.