This LexisPSL Local Government article, produced in partnership with Tim Spencer-Lane considers recent court decisions on whether a parent can consent to the confinement of their child which, absent a valid consent, would amount to a deprivation of liberty.
What is deprivation of liberty?
Article 5 of the European Convention on Human Rights (ECHR) guarantees the right to personal liberty and provides that no one should be deprived of their liberty in an arbitrary fashion. The protection of ECHR, art 5 applies to those of all ages. ECHR, art 5(1)(e) permits the lawful detention of, among others, 'persons of unsound mind' in accordance with a procedure prescribed by law. Article 5 also requires certain safeguards to be provided to persons deprived of liberty, including the right of access to speedy judicial proceedings to challenge the lawfulness of the detention.
The question of when deprivation of liberty arises is therefore crucial. In the context of a person of 'unsound mind', the European Court of Human Rights (Storck v Germany (2005) 43 EHRR 96 (App No 61603/00) paras 74 and 89) has confirmed that a deprivation of liberty has three elements:
- the objective element of confinement in a restricted space for a non-negligible period of time
- the subjective element that the person has not validly consented to that confinement, and
- the detention being imputable to the state
In most of the key cases it is common ground that the second and third elements are satisfied. In other words, consent is absent (because, for example, the person lacks capacity to give consent), and the detention is imputable to the state (because, for instance, the person is being detained in an NHS hospital).
Therefore most attention has been focused on the objective element. In a decision by majority, the Supreme Court in P v Cheshire West and Chester Council and P and Q v Surrey County Council  UKSC 19 ('Cheshire West') held that the objective element consisted of determining whether the person concerned was under continuous supervision and control, and not free to leave. Both conditions must be satisfied in order to satisfy the objective element. This was referred to by Lady Hale as the 'acid test'.
However, two recent cases—concerning the position of children and young people—have focused attention on the subjective element.
A child or young person’s ability to consent to care and treatment depends on their capacity or competence to do so. The Mental Capacity Act 2005 (MCA 2005) applies to people aged 16 and over, and therefore will determine whether a young person (aged 16 or 17) has capacity to consent. The competence of a child under 16 to consent will be determined by the principles set out in Gillick v West Norfolk and Wisbech Area Health Authority  AC 112.
ECHR, art 5 requires that in order for a person to consent to the confinement there must be:
'sufficient and reliable evidence suggesting that the person’s mental ability to consent and comprehend the consequences thereof has been objectively established in the course of a fair and proper procedure and that all the necessary information concerning placement and intended treatment has been adequately provided to him.'
But two recent cases (Trust A v X  EWHC 922 (Fam) and Birmingham City Council v D  EWCOP 8) considered a different aspect of the subjective element, namely whether or not it is possible for a parent to consent to the confinement on behalf of the child or young person. Both cases concerned the same child (referred to as 'D') and were considered by the same judge (Mr Justice Keehan).
Children aged 15 and under
In the first case (Trust A v X  EWHC 922 (Fam)), D was 15 years old. He was diagnosed with Attention Deficit Hyperactivity Disorder, Asperger’s and Tourette’s from a very early age. He had presented with significantly challenging behaviour and his parents struggled to care for him for many years. He was admitted to hospital in October 2013 (where he was further diagnosed with mild learning disabilites) and had remained there, with regular visits from his family and short supervised home visits. D attended an on-site school on a full-time basis. He was constantly under the supervision and control of the unit staff. The external door to the unit in which he was placed within the hospital was locked, and he was checked on by staff every half an hour or so and sought contact with the staff more regularly within that time.
Mr Justice Keehan accepted that the nature of D’s confinement would satisfy the objective element of deprivation of liberty. In doing so the judge expressly rejected the notion that Cheshire West did not apply to cases where the person concerned was under 16.
But the 'essential issue' in this case was whether D’s parents could, in the proper exercise of parental responsibility, consent to what would otherwise be a deprivation of liberty. Mr Justice Keehan identified two issues were particularly important in this respect. First, the age of the child; the appropriate exercise of parental responsibility will vary, for instance, in respect of a five-year-old child and a 15-year-old young person.
Secondly, it was 'inevitable and necessary' to take into account the boy’s diagnosed conditions. Thus, a decision to keep such a 15-year-old boy without disabilities under constant supervision and control would be considered an inappropriate exercise of parental responsibility and probably amount to ill-treatment. But the decision to keep an 15-year-old boy with a diagnosed mental health condition and displaying challenging and potentially harmful behaviours under constant supervision and control was a quite different matter. It was therefore held that the decision to place D in the hospital was the proper exercise of parental responsibility. Therefore D was not deprived of liberty.
Mr Justice Keenan also noted the fact that the parents were acting in the 'welfare best interests' of their son and had followed medical advice. Otherwise the position might have been very different. But in this case, the judge concluded, it would be wholly disproportionate, and fly in the face of common sense, to rule that the parents’ decision was not well within the zone of parental responsibility.
Young people aged 16 and 17
In the second case (Birmingham City Council v D  EWCOP 8), D was 16 years old. In 2015, (and following considerable delay) he had been discharged from hospital and placed in a residential unit. The Court of Protection had sanctioned the move to the unit, which had been arranged by the local authority with his parent’s agreement under section 20 of the Children Act 1989 (ChA 1989). D lived at the unit in a house with three other young people of a similar age and continued to attend the on-site educational facility. He was under constant supervision and control with all external doors locked, and was not permitted to leave the premises unless for a planned activity.
It was conceded by the local authority that the circumstances in which D resided and was educated would satisfy the objective element of deprivation of liberty.
The Official Solicitor (acting as D’s litigation friend) made submissions to the effect that a parent can never consent to a confinement that would otherwise be a deprivation of liberty, and that Trust A v X had been wrongly decided. Mr Justice Keehan rejected this argument and stated that his analysis of the law in that case, when D had been 15 years old, had been correct.
However, he also rejected the local authority’s submission that Trust A v X applies with equal force to a young person aged 16 or 17. In reaching this conclusion, Mr Justice Keehan noted that Parliament has on numerous occasions chosen to distinguish the legal status of children aged below 16, those aged 16 and 17 and those who have not yet achieved their majority. The judgment lists six such examples. But the judge placed particular emphasis on the fact that Parliament has chosen to include incapatious 16- and 17-year-olds within the remit of the MCA 2005 and exclude those aged below 16 from most of its provisions. He also accepted that various international conventions, the United Nations Convention on the Rights of the Child and the Human Rights Act recognise the need for 'a greater degree of respect for the autonomy of all young people' but especially those aged 16 and 17. It was therefore held that — no matter how close the parents are to their child and co-operative they are with the treating clinicians — the parent of a 16- of 17-year-old may not consent to their confinement which, absent a valid consent, would amount to a deprivation of liberty. Therefore D was deprived of liberty.
The judge also made it clear that 16- and 17-year-olds are entitled to the full protection of ECHR, art 5 irrespective of their capacity to consent to the relevant care and treatment. He therefore rejected submissions by the local authority that the scope of parental responsibility will differ according to the 16- or 17-year-old’ level of maturity and ability to make decisions.
Mr Justice Keehan also rejected the argument that the parents’ consent to D being accommodated pursuant to ChA 1989, s 20 is valid consent to D’s confinement at the residential unit. In doing so he expressly disagreed with Mr Justice Mostyn in YB v BCC  EWHC 3355 (COP) at  who had argued that a ChA 1989, s 20 agreement will mean that the subjective element can never be satisfied. Mr Justice Keehan had already—in a separate case—confirmed that a local authority sharing parental responsibility by virtue of an interim or full care order could not consent to the confinement which would otherwise amount to deprivation of liberty (A Local Authority v D  EWHC 3125 (Fam) at ).
Finally, the issue arose as to whether or not D’s placement and confinement was imputable to the state. The judge found that it was. The fact that D’s parents could at any stage object to his continued accommodation and remove him from the residential unit did not provide a definitive answer to the test of imputability. The judge held that the role of the local authority in establishing and maintaining D’s placement was central and pivotal and in no sense could these circumstances be considered a purely private arrangement. In any event, state imputability would still arise due to the local authorities positive obligations under ECHR, art 5.
Implications for practice
The case of Trust A v X has confirmed that parents can consent to the confinement of their child (aged 15 or below). If valid consent is provided, there can be no deprivation of liberty and ECHR, art 5 is not engaged (and the child is not eligible for the safeguards guaranteed under ECHR, art 5). But if valid consent is absent, any confinement which would amount to deprivation of liberty will need to be authorised by the state; in many such cases this will mean that a public authority must apply to the High Court for the exercise of its inherent jurisdiction.
This decision has proved controversial. The Law Commission raised concerns that judicial confidence was being placed on the 'zone of parental control' which it argued remains a 'poorly understood and ill-defined concept'. It also pointed to the implication that a child who lacks capacity may be left without the protections of ECHR, art 5 as a result of this concept.
The position of young people aged 16 or 17 is different. The case of Birmingham City Council v D confirmed that parents cannot consent to the confinement of a 16- or 17-year-old. Therefore, if valid consent is not provided by the young person, ECHR, art 5 could be engaged. Any confinement which would amount to deprivation of liberty will need to be authorised by the state; in many such cases this will mean that a public authority will need to apply to the Court of Protection.
The decision in D v Birmingham has been widely welcomed. It ensures that young people who are deprived of liberty are not denied legal safeguards. However, the decision also has potentially huge resource implications. The precise number of young people who, as a result of this judgment, would now be considered deprived of their liberty is unclear. However, there is a significant number of young people in settings such as residential special schools who may now require legal protections to be provided. The Deprivation of Liberty Safeguards contained in the MCA 2005 do not apply to those under 18 (for example disabled children in residential schools) and therefore applications to the Court of Protection will now be required to authorise their deprivation of liberty.
It is noteworthy that a factor expressly (but unsuccessfully) prayed in aid by the local authority in support of the argument that D and those in a similar position should not be held fall within ECHR, art 5 was 'the potential adverse resource implications of local authorities having to make numerous applications to the Court of Protection'. The judgment confirms that pressures on resources, and increased delays, are not relevant to determining whether there are adequate safeguards to satisfy ECHR, art 5.
Finally, these are the latest in a long line of cases to have cast doubt on the validity of Nielsen v Denmark (1988) 11 EHRR 175 (App No 10929/84). In the Nielsen case, the European Court of Human Rights considered the hospitalisation of a 12-year-old boy in a psychiatric unit for five months. The boy had been placed in the unit by his mother (who alone had parental responsibility). The Court found (by a majority of nine to seven) that the restrictions to which he was subject were 'no more than the normal requirements for the care of a child of 12 years of age receiving treatment in hospital', and therefore the hospitalisation did not engage ECHR, art 5 but was instead 'the responsible exercise by the child’s mother of her custodial rights in the interests of the child'.
This decision has long been the subject of criticism. It was described as 'controversial' by Lord Neuberger in Cheshire West and has also been doubted by Mr Justice Munby (as he was then) in Re A  EWHC 978 (Fam) at .
Mr Justice Keehan distinguished between the circumstances of the child in Nielsen and those of D, and expressly confirmed that he had not had regard to the 'controversial majority decision' in Nielsen in coming to his decision. Whether any reliance can be placed on Nielsen — unless the facts of the case are identical—must now be seriously subject to doubt.
This article, written in partnership with Tim Spencer-Lane was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.