Children’s services face having to make scores of Court of Protection applications to authorise deprivation of liberty of 16 or 17-year-olds after a judge ruled parental consent was not sufficient.
Experts said the ruling, in the case of Birmingham City Council & D, had huge implications for local authorities given it could apply to large numbers of placements for young people lacking capacity.
The case concerned a teenage boy, known as D, with multiple disabilities who was being cared for in a secure hospital setting and was subsequently moved to a residential placement.
In an earlier case in March last year, when D was 15, Mr Justice Keehan considered parental consent was sufficient to ensure he was not being unlawfully deprived of his liberty, despite being under continuous control and supervision in a hospital setting.
However, last month, in a follow-up to this case, the same judge re-considered the issue of deprivation of liberty now the boy, who has Asperger’s Syndrome and ADHD, is 16 and has been moved to a residential setting.
The council funded the boy’s placement and arranged it under section 20 of the Children Act 1989. This allows for a young person to be accommodated with parental consent.
Deprivation of liberty explained
Three factors determine deprivation of liberty under Article 5 of the European Convention on Human Rights:
- The objective element – The person is confined in a particularly place for an extended period of time.
- The subjective element – There is no consent either because the person has not consented to, or lacks capacity to consent to, the control placed on them.
- The state element – The deprivation of liberty may be on the responsibility of the state, either directly or indirectly.
This case concerned whether parental consent meant the subjective element was not met. The council also argued the third element was not met.
While Birmingham submitted D was not being deprived of his liberty because his parents had consented to the placement arrangements, Mr Justice Keehan contended it would be “wholly wrong not to recognise the special status accorded by Parliament to 16- and 17-year-old people” in D’s case on the grounds that by reason of his disabilities he cannot consent.
He said: “I am entirely persuaded that Parliament has on numerous occasions…chosen to distinguish the legal status of those who have not attained the age of 16 years, those aged 16 and 17 and, finally, those who have attained their majority.
“I am particularly persuaded by the fact that Parliament chose to include incapacitous 16 and 17 years within the remit of the Mental Capacity Act.
He added: “Precisely because of his disabilities and vulnerability, it is vital that D is accorded the same status as a 16-year-old without any disabilities.”
Experts told Community Care the ruling could have as significant an impact for children’s social workers as the landmark ‘Cheshire West’ deprivation of liberty ruling had on adult services.
The March 2014 ruling effectively lowered the threshold for cases requiring authorisation through either the Court of Protection or the Deprivation of Liberty Safeguards (DoLS). It introduced an “acid test” which said someone is considered deprived of their liberty if they are under continuous control and supervision and they are not free to leave. If they lack the capacity to consent to this deprivation of liberty, legal safeguards must be put in place.
Previously some case law suggested for 16- and 17-year-olds, parental consent was enough in some cases and these cases would not have usually been brought to court. Now, the case of Birmingham City Council V D has overturned this.
Daisy Bogg, a DoLS trainer and social worker, said: “The implications of this ruling are potentially huge because we’re going into an area the system’s not currently well equipped to deal with. It would be good if children’s services and adult services could work together to learn from the experiences of Cheshire West because two years on we’re still struggling with the implications [of that ruling].”
‘Sacrificed on the altar of resources’
Mr Justice Keehan also stated in strong terms that the resource implications of this for local authorities could not be a factor in determining D’s rights or deciding whether cases should be brought to court.
The official solicitor observed the local authority “rightly identified that the outcome of this case has significant resource implications for this and all local authorities nationally.
“But, the emphasis placed on this potential adverse consequence is entirely misplaced.”
Mr Justice Keehan said: “The protection of D’s Article 5 rights (to liberty) must not and, in my judgment, cannot be overridden by consideration of the resource implications for state bodies including this local authority.
““The protection of the human rights of those with disabilities or the vulnerable members of our society is too important and fundamental to be sacrificed on the altar of resources.”
Birmingham also stated not only that D was not being deprived of his liberty because of parental consent, but that because his parents agreed and were free to remove him at any time, any deprivation of liberty that did occur was not the state’s but the parents’ responsibility.
Mr Justice Keehan found that because the authority had identified, arranged, commissioned and supervised the placement, “in no sense at all could this set of circumstances be considered a purely private arrangement with no state involvement.”
However, more crucially, the judge also stated councils don’t just have a negative obligation to not unlawfully deprive people of their liberty themselves but also a positive obligation to ensure others don’t so where the local authority know or ought to know about it. This could mean a local authority is obliged to bring cases to court even where they have no direct involvement in making the care arrangements.
Ben Troke, partner at Browne Jacobson LLP, said: “If this is right, then we may find we come to talk about the ‘Birmingham’ case, not just in terms of 16- and 17-year-olds, but as having a similar impact to Cheshire West itself in terms of the role of the state and its obligations.”