Legal Update: The Court of Appeal reverses the law on deprivation of liberty for 16 & 17 year olds


In the matter of D (A Child) [2017] EWCA Civ 1695: The Court of Appeal rules that parental consent can be relied upon to render lawful the confinement of a 16 or 17 year old in circumstances which would otherwise amount to a deprivation of liberty.

Background

The detailed background to the case is contained within our legal update dated 30th January 2017. D was a young person with ADHD, autism, Tourette’s and learning disabilities. His case came before the court when he was 15, then again when he turned 16. The issue was whether parental consent (via the exercise of parental responsibility) to D’s confinement, initially on a psychiatric unit and subsequently in a residential placement, prevented a deprivation of liberty arising. D was under continuous supervision and control  and not free to leave (the ‘acid test’ for a deprivation of liberty) and lacked capacity to consent to his confinement.

The case first came to court in 2015 when D was aged 15. Mr Justice Keehan, taking into account D’s autism and other conditions, held that parental consent to D’s confinement did amount to an appropriate exercise parental responsibility. That consent meant that D was not deprived of his liberty and, as such, Article 5 safeguards were not required

The case came back before Mr Justice Keehan in 2016. The question for the court was whether, now that that D was 16, parental consent could still be relied upon to authorise D’s confinement in circumstances which would otherwise amount to a deprivation of liberty? Mr Justice Keehan concluded that it could not. He stated that the law treats 16 & 17 year olds differently to those under 16 – most notably the Mental Capacity Act, which includes 16 & 17 year old within its remit.  As such, he declared that the exercise of parental responsibility did not entitle parents to consent to a young person’s confinement, irrespective of whether the young person lacked capacity to consent to that confinement themselves.

This second judgment was extremely controversial. It meant that any confinement of a young person in circumstances which would otherwise meet the “acid test” now required court authorisation in order to prevent an unlawful deprivation liberty arising. Parental consent could no longer be relied upon. The standard DoLs authorisation process could not be utilised as it only applied to those 18 and over. This judgment had huge implications, particularly for local authorities, with justifiable concern that they would be required to bring to court a large number of cases in which children age 16 and 17 were confined in residential placements.

Not surprisingly, the local authority in appealed.

The Court of Appeal’s Decision

Lord Justice Munby, giving the leading judgment, allowed the local authority’s appeal. He held that there is no dividing line which distinguishes 16 and 17-year-olds from those under 16 when it comes to the exercise of parental responsibility. Parental responsibility can in principle be exercised up until a young person turns 18 if, for whatever reason, they lack ‘Gillick capacity’ (otherwise known as ‘Gillick competence’). As a result, although D’s confinement satisfied the “acid test”, he was not deprived of his liberty because his parents were able to give valid consent. Consequently judicial safeguards were not required.

Lord Justice Munby found that there is no ‘magic’ in the age of 16 when it comes to the exercise of parental responsibility. Gillick capacity is ‘child specific’ – one child may have attained Gillick capacity by the age of 15 whereas another may not have acquired it even by the age of 18. The impact of the appeal judgment is that parental consent can be relied upon to authorise the confinement of a 16/17 year old providing that falls within the “zone” of parental responsibility. When ascertaining the “zone” of parental responsibility in any given case Lord Justice Munby stated that the question to ask is whether the restrictions being imposed by a particular parent in a particular case fall within ordinary acceptable parental restrictions upon the movements of a child in contemporary Britain.

Comment

This well-reasoned common sense judgment will be welcomed by local authorities who can once again, in the majority of cases, safely rely upon parental consent to the confinement of a child or young person (who lacks Gillick competence) in circumstances which would otherwise amount to a deprivation of liberty. The proviso here is that the restrictions being imposed must fall within the “zone” of parental responsibility in order for that parental consent to be valid.

Had D been objecting to his confinement we suggest that the Court of Appeal may well have reached a different decision. The greater the degree of coercion required to confine a young person, the more likely it is that the decision to confine falls outside the zone of parental responsibility and as such judicial safeguards will be required in order to prevent an unlawful deprivation of liberty.  Therefore caution should be exercised when deciding whether to rely upon parental consent in these circumstances. The Mental Health Act Code of Practice at 19.41 provides a useful source of guidance on what factors to consider when determining if a decision falls within the zone of parental responsibility.

Therefore the law, as it currently stands, appears to be as follows:-

  1. Under 18’s who lack capacity/Gillick competence to consent to their confinement Parents can give valid consent providing that is an appropriate exercise parental

responsibility.

  1. Under 18’s who have capacity/Gillick competence to consent but who object to their confinement

Parental consent cannot be relied upon. Article 5 safeguards are required (court    authorisation or MHA)

  1. Under 18’s subject to an interim or final care order who lack capacity/Gillick competence to consent to their confinement

Neither the parents nor the local authority in the exercise of shared parental responsibility (pursuant to an interim or final care order) can give valid consent. Article 5 safeguards are required (court authorisation or MHA). N.B. the Appeal Court judgment was not required to address this specific issue so the previous law continues to apply.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk

[We understand that this decision is likely to be appealed to the Supreme Court – we will post a further legal update if the law changes – 26/02/2018.]


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