Can a parent consent to the deprivation of liberty of a 16 year old ?

A recent decision of a Court of Protection judge provides clarity on the issue of whether a parent can consent to the deprivation of liberty of a child who has attained the age of 16. Mr Justice Keehan concluded in Birmingham City Council v D and W that such a consent falls outside the scope of parental responsibility and therefore any deprivation of liberty of a 16 or 17 year old is likely to require an application to the Court of Protection for an order approving the deprivation.

The Birmingham City Council case follows on from the decision in A v X (in which we acted) which dealt with the issue of whether parental consent for those under the age of 16 was sufficient to avoid the need to apply for court authorisation in circumstances which appear to meet the Cheshire West test for a deprivation of liberty. The decision in A v X was that parental consent was sufficient authority to detain an under 16 year old. It is of note that X had significant learning impairments so we anticipate further case law in relation to under 16s where they have a higher level of understanding of their confinement and treatment. 

Mr Justice Keehan, in the current case, commented (at paragraph 109) that D’s diagnosed conditions were "a very material factor in determining which decisions fall within the zone or scope of parental responsibility" and therefore decisions will always be case specific.

This is an important decision for commissioners and providers alike. If you commission or provide care for young adults aged 16 or 17 and their care package amounts to a deprivation of liberty you are unable to apply to the Local Authority for a Standard Authorisation as this process applies to over 18s only. This case suggests that parental consent is unlikely to be enough and therefore you may need to make an application to the Court of Protection for an order approving the deprivation of liberty.

If you require assistance in relation to this developing issue, please contact Helen Burnell or Laura Jolley.

Helen Burnell, Prinicipal Associate

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