D (A Child) (Rev2) [2019] UKSC 42

D, a 16-year-old with multiple disabilities including autism and Tourette's, was placed in residential accommodation with continuous supervision. His parents consented to arrangements that would otherwise deprive him of his liberty. The Supreme Court held that parental consent could not authorise such deprivation for a 16 or 17-year-old, requiring Article 5 safeguards.

Facts

D was born in April 1999 and was diagnosed with ADHD, Asperger’s syndrome, Tourette’s syndrome, and a mild learning disability. After his parents struggled to care for him at home, he was informally admitted to Hospital B in October 2013 at age 14. On his 16th birthday in April 2015, he was moved to Placement B, a residential facility where external doors were locked, he required permission to access the garden, could not leave unescorted, and received continuous one-to-one supervision. He was accommodated under section 20 of the Children Act 1989, becoming a “looked after child”. He was later transferred to Placement C under materially similar arrangements. It was common ground that, but for parental consent, the arrangements constituted a deprivation of liberty, that the arrangements were in D’s best interests, that D lacked capacity to consent, and that the deprivation was attributable to the state.

Issues

The principal issue was whether it falls within the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of Article 5 ECHR. Subsidiary issues included what difference the child’s lack of mental capacity made, what difference the identity of the holder of parental responsibility made, and whether section 25 of the Children Act 1989 (secure accommodation) applied to such living arrangements.

Arguments

The Official Solicitor (appellant)

Primarily, no person can consent to the confinement of a child aged 16 or over who lacks capacity; where such confinement is attributable to the state, Article 5 safeguards must apply. The Mental Capacity Act 2005 provides a complete framework for those aged 16 and above lacking capacity. Alternatively, any consent should apply the section 4 MCA best interests framework.

Birmingham City Council (respondent)

It remains within the lawful scope of parental responsibility to authorise the confinement of a 16 or 17-year-old who is not Gillick competent. The common law position was not eroded by the MCA 2005 or other legislation.

Equality and Human Rights Commission (intervener)

Parents should not be able to consent to the confinement of a 16 or 17-year-old so as to remove Article 5 protections; to do so where lack of competence arises from disability would amount to unjustified disability discrimination.

Secretaries of State (interveners)

A child is only “confined” if restrictions exceed those imposed on a comparable child free from disability; a person with parental responsibility may validly consent where the child lacks Gillick competence, provided they act in the child’s best interests.

Judgment

The Supreme Court, by a majority (Lady Hale, Lady Black, Lady Arden), allowed the appeal. Lord Carnwath and Lord Lloyd-Jones dissented.

Lady Hale’s reasoning

Applying the tri-partite Storck v Germany test as adopted in Cheshire West, Lady Hale held that the objective component (limb (a)) was plainly met: the degree of supervision and control over D was not normal for a child aged 16 or 17 and would have amounted to a deprivation of liberty for a capacitous child of that age. Drawing on Lord Kerr’s analysis in Cheshire West, the comparator is a child of the same age without disability; disabled children are entitled to the same Article 5 rights.

On the subjective component (limb (b)), Lady Hale held that parental consent cannot substitute for the consent of the confined person. The Strasbourg jurisprudence (Stanev, DD v Lithuania, Kedzior, Mihailovs, Stankov) consistently holds that limb (b) is satisfied even where a legal guardian consents. Limb (c) was conceded.

On parental responsibility, Lady Hale held it would be a “startling proposition” that a parent could license the state to violate the most fundamental rights of a child, such as the right to liberty. The state cannot do what it has a positive obligation to prevent others from doing. It was therefore not within the scope of parental responsibility for D’s parents to consent to a placement depriving him of his liberty. Safeguards under Article 5 are required precisely because those holding parental responsibility may not always act in the child’s best interests.

Lady Black’s reasoning

Lady Black conducted a detailed historical review of the common law, including Rex v Greenhill, R v Maria Clarke, R v Howes, In re Agar-Ellis, and Hewer v Bryant. She concluded that at common law the parental power physically to restrict a child’s liberty ended at the age of discretion, fixed chronologically (16), not by reference to capacity. She disagreed with Sir James Munby P’s view that Gillick extended to the liberty context: Gillick concerned medical consent and the contracting of parental responsibility for under-16s, not its extension beyond the age of discretion. Accordingly, as a matter of common law, parental responsibility for a 16 or 17-year-old does not extend to authorising confinement amounting to deprivation of liberty. This reinforced Lady Hale’s conclusion.

Section 25 Children Act 1989

Lady Black (with whom Lady Hale agreed) held that section 25, concerning secure accommodation, should not be given an unduly wide interpretation. The focus should be on the nature of the accommodation itself rather than on the care regime applied to the particular child, drawing support from R v Secretary of State for the Home Department, Ex p A and In re C (Detention: Medical Treatment). Section 25 has a “last resort” quality and is unlikely to catch many children whose liberty is restricted in hospitals, care homes, or other settings. Consequently, the parental responsibility issue retains practical importance.

Lady Arden’s concurrence

Lady Arden agreed with Lady Hale on Article 5, emphasising the normality comparison from Nielsen. She noted a qualification that some situations (such as life-saving emergency treatment as in R (Ferreira)) do not engage Article 5. She reserved her position on section 25 and the common law analysis pending an appropriate case.

Dissent (Lord Carnwath, with Lord Lloyd-Jones)

The dissenters agreed with Sir James Munby P’s analysis in the Court of Appeal. They held that Nielsen v Denmark remains good authority supporting the validity of parental consent where exercised responsibly, in good faith, and on medical advice. The MCA 2005 does not displace common law parental responsibility; clear legislative words would be required. The courts should exercise caution in developing the law in this sensitive area, particularly given the recent Mental Capacity (Amendment) Act 2019, which appears to have been framed on the basis of the existing understanding. They would have dismissed the appeal.

Implications

The decision establishes that, where a 16 or 17-year-old child lacks capacity to consent, those exercising parental responsibility cannot validly consent to arrangements amounting to a deprivation of liberty attributable to the state. Article 5 safeguards must be engaged, requiring independent authorisation, whether by the Court of Protection or (prospectively) under the Liberty Protection Safeguards introduced by the Mental Capacity (Amendment) Act 2019.

The judgment clarifies the interaction between parental responsibility and Article 5 in the following ways. First, the comparator for determining confinement is a child of the same age without disability, so disability cannot reduce the Article 5 threshold. Second, parental consent does not satisfy the subjective limb of Storck. Third, the most fundamental Convention rights, including liberty, cannot be signed away by a parent on a child’s behalf.

The decision leaves open significant questions. Lady Hale expressly declined to decide whether the same conclusion applies to children under 16, and Lady Black indicated the position might differ. No view was expressed on parental responsibility for serious or irreversible medical treatment outside the deprivation of liberty context. The scope of section 25 Children Act 1989, while discussed, was not authoritatively resolved, as the issue was addressed only on written submissions following the hearing.

The case is significant for local authorities, NHS bodies, residential care providers, parents, and practitioners advising on placements of disabled young people. It confirms that administrative or judicial safeguards must be obtained for confined 16 and 17-year-olds lacking capacity, and supports the legislative extension of deprivation of liberty safeguards to this age group. More broadly, it reinforces that human rights protections apply equally to disabled children and young people, who cannot be accorded fewer protections by reason of their disability.

Verdict: Appeal allowed (by a majority of three to two). The Supreme Court held that it is not within the scope of parental responsibility for parents to consent to living arrangements for a 16 or 17-year-old child lacking capacity which would otherwise amount to a deprivation of liberty within the meaning of Article 5 ECHR. Lord Carnwath and Lord Lloyd-Jones dissented.

Source: D (A Child) (Rev2) [2019] UKSC 42