by Mithran Samuel & Luke Stevenson
Parents will be able to consent to the detention of children aged 16 and 17 who lack the capacity to consent themselves, following a Court of Appeal judgement that overturned the previous law.
In a judgment handed down this week in the case of D (A Child), Sir James Munby said a 2016 Court of Protection ruling that a 16-year-old disabled boy was being deprived of his liberty under human rights law because his parents weren’t able to consent to his confinement in a residential placement was “wrong in law”.
The 2016 judgment, by Mr Justice Keehan, had reasoned that consenting to the detention of a 16- or 17-year-old fell outside the scope of parental responsibility due to the “special status” 16- and 17-year-olds had in law.
At the time, experts warned there would be “potentially huge” implications for children’s social workers, insofar as they would have to bring to court a large number of cases in which children aged 16 and 17 were detained in residential placements.
However, Munby, president of the Court of Protection as well as of the family courts, said the judgment was wrong on two counts. Firstly, it did not conform to the “fundamental principle” established by the case of Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security : that the exercise of parental responsibility does not come to an end “on the attaining of some fixed age but on attaining ‘Gillick capacity’”. This is the point at which the child is sufficiently mature to make decisions for themselves.
Secondly, Munby said that none of the statutory provisions that Mr Justice Keehan referred to in his judgment – for example, the fact that the Mental Capacity Act 2005 applies to people aged 16 and over – was relevant to the scope of parental responsibility.
“None of the statutory provisions upon which he relied bears, either expressly or by implication, upon the matter in hand which, to emphasise the obvious, is to do with the ambit and extent of parental responsibility and nothing else,” Munby said.
While this judgment overturned the 2016 ruling, this may not be the end of legal challenge in this area. The executive director of children’s services at Birmingham council, Alastair Gibbons, anticipates the case being taken to the Supreme Court.
Munby said the 2016 judgment placed improper emphasis on the Mental Capacity Act 2005, which he said “does not make specific provision in relation to those aged 16 or 17”. He added that except for two – in this case irrelevant – exceptions, the MCA “makes no statutory provision for the role of those exercising parental responsibility”.
“The matter is left to the common law, in other words to the operation of the Gillick principles,” Munby said.
The boy, D, had been cared for in a hospital in which he was closely supervised and always accompanied if he went off-site. D was moved to a high-support residential placement a month after his 16th birthday. The placement was funded by Birmingham Council and arranged under section 20 of the Children Act 1989.
In 2015, the council issued proceedings in the Court of Protection to ensure it had lawful authority for D’s residential placement. It was agreed that D was subject to continuous supervision and control and not free to leave but the issue was whether he satisfied the other two criteria for a deprivation of liberty under article 5 of the European Convention on Human Rights: that he had not given valid consent and his confinement was the responsibility of the state.
Mr Justice Keehan rejected Birmingham’s arguments that D’s parents’ consent was sufficient to avoid a deprivation of liberty and that, because he had been accommodated voluntarily under section 20, his confinement was not the responsibility of the state.
Birmingham council appealed the judgment on three counts: that it was wrong to say that a parent cannot consent to arrangements for a child over 16 which would otherwise be a deprivation of liberty; that it wrongly said D’s care arrangements were attributable to the state; and that it was wrong to find he was deprived of his liberty because of the arrangements that exist to monitor the care of looked-after children.
The Court of Appeal approved the first ground of appeal, but discarded the other two.
Gibbons welcomed the Court of Appeal’s ruling, saying that if the original judgment had remained in place, “then up and down the country we would have had to make applications to the Court of Protection for all 16- and 17-year-olds in those circumstances”.
He added: “We welcome the clarity of the ruling, we would agree that parental consent can apply to 16- or 17-year-olds who are not Gillick competent.”
He said that, if it hadn’t been overturned, the 2016 judgment would have had implications for local authorities across the country, and brought the challenging Deprivation of Liberty landscape from adults’ services into the children’s sector.