Young people deprived of their liberty must have their placement authorised legally, rather than through their parents’ consent, the Supreme Court has ruled.
In a much-anticipated ruling handed down yesterday, the UK’s highest court overturned a 2017 Court of Appeal judgment that said holders of parental responsibility could consent to a 16 or 17-year-old being confined if the child lacked capacity to consent themselves.
The decision means local authorities will need to review and potentially seek legal authorisation for the confinement of 16- and 17-year-olds in foster or residential placements to which they lack capacity to consent, where councils have relied on parental consent.
However, the impact of the judgment is limited by the fact that the Liberty Protection Safeguards – the new system for authorising deprivations of liberty due to come into force in October 2020 – will apply to those aged 16 and above.
The case concerned a disabled young man, D, who, when aged 16, had a required a high level of supervision and control in his residential home.
What the previous judgment said
In the 2017 judgment, the Court of Appeal found that it was within the scope of parental responsibility to consent to what otherwise would be a deprivation of liberty of a young person under Article 5 of the European Convention on Human Rights, meaning no authorisation was required.
The 2017 judgment, delivered by Sir James Munby, drew on the principle set out in 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’” – the point at which the child is sufficiently mature to make decisions for themselves. This meant that when Gillick capacity or competence had not been attained, parental responsibility could still be relied upon.
Sir James’ ruling overturned a prior Court of Protection judgment in D’s case. This had found that parental responsibility could not provide consent for the confinement of a 16- or 17-year-old because Parliament had made a distinction in the status of those aged 16 and above and younger children. Sir James said that the Court of Protection had wrongly relied on these statutes, including the Mental Capacity Act 2005, as none was relevant to the scope of parental responsibility.
The secretaries of state for education and justice had intervened in the Supreme Court case in support of the 2017 ruling, which was also the position of Birmingham council, the authority responsible for D’s placement.
However, by a majority of three to two, the Supreme Court judges overturned it.
Gillick not relevant
Lady Hale, who gave the main judgment, agreed with Sir James that the statutory provisions that set a threshold at age 16 were not relevant to the case. However, she said that neither was the Gillick case, which was about medical treatment, not deprivation of liberty, and about whether a child could make decisions for themselves before reaching 16, not whether parental authority extended beyond that age if the child lacked capacity.
While there may be a general rule that parental responsibility extended to making decisions on behalf of children of any age who lack capacity to make them themselves, Lady Hale said the question in this case was the limits to this rule and its application to deprivation of liberty.
Under Article 5, as set out in the acid test outlined in the 2014 Cheshire West case, a person is deprived of their liberty if:
- They are confined – meaning subject to continuous supervision and control – in a particular place for a not negligible period of time.
- Their confinement is attributable to the state.
- They have not given valid consent.
Before turning to whether those with parental responsibility could give valid “substituted consent”, Lady Hale confirmed that the other two conditions were met in D’s case.
About this case
D had attention deficit hyperactivity disorder, Asperger’s syndrome, Tourette’s syndrome and a mild learning disability. He needed a high level of support and had lived in various placements with on-site education facilities since the age of 14.
In these arrangements, he was under constant supervision and only left the site accompanied by staff for planned activities or visits home. The NHS trust initially responsible for his accommodation had obtained a declaration from the High Court that it was lawful for him to be deprived of his liberty in this way.
When D was discharged from that hospital placement to a residential one, Birmingham council became responsible for his accommodation, in agreement with his parents under section 20 of the Children Act 1989. On D’s 16th birthday, the council sought a declaration through the Court of Protection that his parents’ consent meant he was not deprived of his liberty. Justice Keehan found his parents could no longer consent to his confinement now he was 16, and authorised the placement under the Mental Capacity Act 2005.
Birmingham’s appeal to the Court of Appeal that parents could consent if a 16 or 17-year-old lacked capacity was allowed in 2017. The appeal against this to the Supreme Court, which was heard in October 2018, was brought on behalf of D by the Official Solicitor.
Lady Hale noted that in different circumstance if the parent themselves was ‘the detainer or uses some other private person to detain the child’ it would still be a deprivation of liberty requiring authorisation as “the state has a positive obligation to protect individuals from being deprived of their liberty by private persons”.
‘Fundamental human rights’
In cases where parents might seek to authorise the state to detain their child, she found that it would be a “startling proposition” for parental responsibility to include “licens[ing] the state to violate the most fundamental human rights of a child”. For example, a parent could not “authorise the state to inflict what would otherwise be torture or inhuman or degrading treatment or punishment upon his child”.
So she concluded that it was not within the scope of parental responsibility for D’s parents to consent on his behalf to a placement that deprived of his liberty.
“Although there is no doubt that [D’s parents], and indeed everyone else involved, had D’s best interests at heart, we cannot ignore the possibility, nay even the probability, that this will not always be the case. That is why there are safeguards required by article 5. Without such safeguards, there is no way of ensuring that those with parental responsibility exercise it in the best interests of the child, as the Secretaries of State acknowledge that they must.”
A spokesperson for the Equality and Human Rights Commission, which had intervened in the case, said the commission welcomed the judgment: “Disabled children have the same right to liberty as non-disabled children…We consider it significant that Lady Hale based her judgment on children’s right to the protections of article 5 of the ECHR and the principle of non-discrimination in the enjoyment of human rights.”
Lady Black agreed with Lady Hale’s analysis and also found that, aside from the child’s rights under the ECHR, under common law in the UK, parental responsibility did not extend to authorising a child’s confinement.
Children under 16
Lady Hale concluded that “logically, [her] 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.” However, she said it was unclear if the analysis in relation to human rights would be different if a child was under 16. Her view was supported by Lady Black, who preferred “to leave this separate question entirely open, to be decided in a case where it arises.”
In his dissenting judgment, Lord Carnwath said he agreed with the Court of Appeal’s analysis and noted “with concern” Lady Hale’s view that her conclusion would logically apply to a child younger than 16.
He said that the findings by Justice Keehan in the High Court when D was 15 that he had not been deprived of his liberty because his parents’ consent was valid had not been questioned by any of the parties. He said this also fitted well with the threshold of 16 for the authorisation of a deprivation of liberty under the Liberty Protection Safeguards.
“For the time-being [Justice Keehan’s} reasoning remains the law, and as such appears to fit well with the new legislative scheme,” he concluded
Alex Ruck Keene, barrister at 39 Essex Chambers who acted for the Official Solicitor, on behalf of D, commented on his blog that the implications of the judgment were “dramatic” but were likely to be alleviated somewhat by the LPS coming into force in October 2020:
“In light of this judgment, and as they should already have been doing as part of their preparation for LPS, public authorities will need to consider the circumstances of 16/17 year olds for whom they have responsibility.”
He added: “They will also need to be alert to situations where ‘private’ confinements may be under way in relation to 16/17 year olds in their own homes, or in private schools/colleges, because (as Lady Hale has re-confirmed) state imputability arises where the state knows or ought to know of such private confinements.”
In the meantime, Ruck Keene said, lawful authority for the deprivation of liberty of a 16 or 17-year-old would need to come, depending on the case, through a court order from the Court of Protection (via a Re X procedure) or the inherent jurisdiction of the High Court, section 25 (secure accommodation) of the Children Act 1989, or the Mental Health Act 1983.
Alex Ruck Keene is delivering two legal learning seminars at this year’s Community Care Live, a Mental Capacity Act legal update and a session on the inherent jurisdiction of the High Court and its use in relation to vulnerable adults. To reserve your place on these or any of our legal seminars, register now for the event and select your preferred session. There is a fee of £29 + VAT for each of the legal sessions.