The Supreme Court held that a parent cannot consent to living arrangements for a 16 or 17-year-old which confine the child beyond what is normal for that age, and so cannot prevent those arrangements from being a deprivation of liberty under article 5 of the European Convention on Human Rights. The Official Solicitor’s appeal was allowed. Whether the same analysis applies to a child under 16 was left open.
D lacked capacity to decide where to live. His placements involved continuous supervision and control, and he was not free to leave. His parents supported the arrangements, which had been made with the involvement of public authorities.
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When D turned 16, the question became whether his parents’ consent still sufficed to authorise his confinement. The Court of Protection authorised the placement. The Court of Appeal took the view that parental responsibility could extend to consenting to it. The Official Solicitor challenged that conclusion on D’s behalf.
Article 5 and parental consent
The Official Solicitor appealed. The question was whether parental responsibility includes consenting to living arrangements for a 16 or 17-year-old which would otherwise be a deprivation of liberty. Article 5 protects liberty. As adopted in Cheshire West from Storck v Germany, a deprivation has three components: confinement for a not negligible time, lack of valid consent, and state responsibility.
Lady Hale, with whom Lady Black and Lady Arden agreed on the article 5 analysis, held that article 5 applies to children and to people who lack capacity. The supervision and control of D went beyond what is normal for a 16 or 17-year-old. Following Lord Kerr in Cheshire West, a disabled child is confined where the constraints exceed those applied to a young person of similar age and full ability. Benevolent motives and the child’s best interests do not prevent that conclusion.
Parental consent could not fill the gap. Strasbourg decisions showed that consent by someone legally entitled to decide for the person concerned does not stop a confinement being a deprivation of liberty, unless that person was willing to stay and capable of saying so. The state was responsible because it arranged and funded the placements and accommodated D under section 20; article 5 also imposes a positive obligation to protect against private interference with liberty. The placements were therefore a deprivation of liberty and the procedural requirements of article 5 applied. A High Court judge had in fact authorised both placements, and it was common ground that they were in D’s best interests, so his article 5 rights had not been violated.
Lady Hale held that consenting to such a placement was outside parental responsibility. A parent could not license the state to violate a child’s fundamental right to liberty, and article 5 safeguards exist because parental decisions will not always serve the child’s best interests. She would allow the appeal and invite submissions on the form of a declaration. She left open whether the reasoning applies to a younger child and expressed no view on parental responsibility for serious medical treatment. She noted that amended Mental Capacity Act safeguards would in future apply to 16 and 17-year-olds.
Lady Black agreed that parental consent could not substitute for D’s consent. She also concluded that, at common law, a parent’s power of physical control ended at the age of discretion, fixed by age rather than capacity, and did not extend to authorising confinement of a 16 or 17-year-old which would otherwise be a deprivation of liberty. Gillick concerned medical treatment and whether a child under 16 could decide earlier; it did not enlarge parental authority over liberty after 16. That common-law conclusion reinforced the article 5 result. She preferred to leave the position of a younger child entirely open.
Secure accommodation
Lady Black also considered section 25 of the Children Act 1989, which restricts the use of accommodation provided for the purpose of restricting liberty and generally requires court authorisation. She regarded it as likely that many confined placements fall outside the section, because the focus is on accommodation provided for that purpose rather than on every restrictive care regime, and because an unduly wide reading could obstruct suitable care for children who do not meet the section’s criteria. She described this as a provisional view. The court had not heard full oral argument, the relevant facts had not all been found, and she said that nothing said would conclusively resolve the section’s scope. Lady Hale agreed with that discussion; Lady Arden treated it as a marker rather than a final decision.
The dissent
Lord Carnwath, with whom Lord Lloyd-Jones agreed, would have dismissed the appeal. He considered Nielsen v Denmark to support a responsible exercise of parental authority, and the Mental Capacity Act 2005 not to have displaced either that common-law principle or the Gillick approach that authority depends on the individual child’s capacity rather than a fixed age of 16. Nothing practical had changed on D’s 16th birthday, and his parents had acted on clinical advice in his best interests.
Verdict: By three votes to two, the Supreme Court allowed the appeal. For D at 16 and 17, parental agreement could not authorise the deprivation of liberty. A judge had authorised the placements, so there had been no actual breach of article 5. The position for children under 16 was left open.
