Children, consent, and confinement

Williams J was clear that the confinement to which he was subject (2:1 support at the placement, and 1:1 at night, with a further 2 members of staff to assist if required):

[38] is far in excess of that which might be applied to even the most unruly 17- year-old in a domestic setting. It clearly amounts to continuous supervision and control. Given RT does not have capacity there is a lack of a valid consent. The deprivation of liberty is attributable to the state.

Williams J considered that it was:

[35] clear that RT may injure himself if not subject to the most stringent levels of supervision. He has demonstrated impulsive behaviour of the most extreme kind which has put his life at risk. It is also clear that RT can behave towards others in a highly aggressive and threatening way which puts him at risk of retaliation by third parties who do not know him. It also puts him at risk of being subject to criminal proceedings. There are particular risks relating to his communications with others through his mobile phone. There will need to some limitations on this. I am well aware that this is a bone of contention for almost every parent of a teenager and in that sense authorising restrictions of this sort are no more than many parents might impose but for RT the limits may need to go further.

[37]. I take account of the views of the local authority and of his mother who both believe the deprivation of liberty is in his best interests.

Williams J therefore authorised the deprivation of his liberty as being in RT’s best interests.

An oddity of the case is that Williams J does not seem to have his attention directed to the decision of the Court of Appeal in D, as he did not seek to examine whether RT’s adoptive mother was capable (in law) of giving consent to the arrangements to as to prevent them being a deprivation of RT’s liberty up to the point of his 18th birthday.

On one view, the arrangements for RT were materially identical to those the Court of Appeal appear to have considered in D to have been “within ordinary acceptable parental restrictions upon the movements of a child." [1]  Why, then, could not his adoptive mother consent on his behalf until his 18th birthday? Whilst foster parents appear to be outside the scope of those who can give consent on the approach of the Court of Appeal in D, does the same restriction apply to a situation where the person has been adopted (by a mother described as “clearly devoted” to him at para 28 of the judgment)?3

The other view is that this is a decision which applies conventional Storck principles as explained by Lord Kerr in Cheshire West – i.e. one asks whether the arrangements go beyond those societally acceptable for a child of that of “age and relative maturity who are free from disability” (paragraph 79); if they are, then either one needs the consent of the person themselves or one has a deprivation of liberty.

We will hopefully see in due course the knots in this area revisited – and untied – by the Supreme Court.

In the meantime, consent was under the microscope in the two linked cases of A Local Authority v SW & Ors [2018] EWHC 576 (Fam) and Local Authority v SW & Ors [2018] EWHC 816 (Fam), Mostyn J was asked to make orders under the inherent jurisdiction authorising the deprivation of liberty of a young person in a placement akin to a s.25 Children Act 1989 secure accommodation order. In the first case, the question arose whether the second limb of the Strasbourg test for deprivation of liberty had to be satisfied for the court to make an order, namely that there was a lack of valid consent on the part of the child. The court concluded that this subjective element did apply, as in other cases engaging Article 5, such that the order could only be made if the child was not validly consenting, even though when the court makes a secure accommodation order, the consent of the child may be present.

Mostyn J also considered the case of A Local Authority v D [2016] EWHC 3473 (Fam), in which a 15 year old was found to be validly consenting to his confinement. Mostyn J expressed the view that what this authority shows, is that valid consent must be both (i) authentic – the child must say it and mean it – and (ii) enduring rather than evanescent.

On the facts of the case, there was no such consent, and the order was made in January 2018. By the time of the second judgment in March 2018, two things had happened – the placement had broken down due to the young person’s conduct, and the permission to appeal the first judgment had been granted by the Court of Appeal. (Readers may recall that permission had previously been granted in respect of the Re D decision, relied on by Mostyn J, but that appeal did not proceed for reasons not relevant to these issues). Mostyn J made a new order in respect of the young person’s new placement, and noted that would no doubt also be appealed, so it seems that in the near future, the Court of Appeal will finally grapple with the question of what counts as valid consent in the Article 5(1)(d) context.

This article was written by the Court of Protection team at 39 Essex Chambers.

[1] See D at 85(iii)

[2] Lord Neuberger in Cheshire West would appear to have thought there was a distinction – see paragraph 72.