DoLS: Children and Young People – Court of Appeal

On 31 October Sir James Munby, President of the Court of Protection, gave the judgment in this Court of Appeal hearing.

In summary, parental consent is, again, valid to authorise a deprivation of liberty of a child or a young person.

Background

This was an appeal from the decision in Birmingham City Council v D which had been handed down in January 2016. D had been 16 years old at that time.

D had already been the subject of an earlier judgment when he was 15 in Re D (a Child).

D was diagnosed with ADHD, Learning Disability, Asperger’s and Tourette’s syndromes. 

At the time of Re D (a Child) D lived within the grounds of a hospital and attended an on-site school. The external door to the unit was locked, D was checked on by staff every half an hour or so. If he left the site, he was accompanied by staff on a one-to-one basis. He was therefore under constant supervision and control. The court decided that the consent of D’s parents to his placement at the hospital when he was 15 years old (with all the restrictions placed upon his life there) fell within the “zone of parental responsibility” so they were able to consent to the placement. However he declined to express any views as to what the position would be if D moved to a new placement / once he reached 16.

Therefore, when D turned 16 the Local Authority issued proceedings in the Court of Protection.  The court authorised the transfer of D to a residential unit. The Local Authority had taken the lead in finding this placement and the parents were kept fully informed. Again, at that placement, he was under constant supervision and control with, for example, all external doors locked and no unaccompanied access to the community. In that hearing, the court concluded that Re D was correct but that D’s parents could not consent once he turned 16. 

Appeal

The Local Authority were concerned about the resource implications for it and indeed for others nationally. They therefore appealed arguing that the court was wrong to find that a parent cannot consent to arrangements for a child who is 16 years old, which would otherwise amount to a deprivation of liberty. They also appealed in respect of findings that the arrangements were attributable to the State and that D was deprived of his liberty. 

It is the former ground that takes up much of the judgment, as the court agreed with the first instance decision that:

  • the confinement was imputable to the State (parental involvement sufficient to involve consent is not in any way incompatible with a degree of State involvement); and
  • D was deprived of his liberty.

Sir James Munby has given a lengthy leading judgment running to over 150 paragraphs. There is a detailed analysis of Strasbourg and English case law – one of the cases referred to dates back to 1857! He posed some interesting questions about “typical” children and foster children at paragraphs 30-32.

Looking at the concept of parental consent, the following key points should be noted:

  • The relevant rights of the holder of parental authority are determined by domestic law (although the domestic law is far from straightforward!).
  • A lot of time is spent discussing the cases of Gillick from 1986 and Re K (A Child) (Secure Accommodation Order: Right to Liberty) from 2001, as well as Cheshire West, of course.
  • At first instance, the Official Solicitor had argued that a parent can never consent on behalf of their child to a period of confinement which, absent the consent, would amount to a deprivation of liberty (so the Re D decision was wrong). Sir James agreed that the court at first instance was correct to reject that argument.
  • At first instance, the court had rejected the Local Authority’s contention that the same applied to a young person of 16 or 17. 

Sir James disagreed with the court of first instance here:

    • The exercise of parental responsibility comes to an end not on the attaining of some fixed age but on the attaining of “Gillick capacity”.
    • None of the statutory provisions referred to at first instance bore expressly, or by implication, on the matter in hand (which was to do with the ambit of parental responsibility and nothing else).
    • The Mental Capacity Act 2005 does not make specific provision in relation to those aged 16 or 17.
    • With only two exceptions (neither of which were relevant to this case) the Mental Capacity Act 2005 makes no statutory provision for the role of those exercising parental responsibility. The matter is left to the common law – in other words to the operation of the Gillick principles.
    • Parental responsibility is, in principle, exercisable in relation to a 16 or 17 year-old who, for whatever reason, lacks “Gillick capacity”;
    • There is no question of discrimination where a parent is acting in a manner compatible with the principles laid down in Gillick.

We frequently advise in respect of Deprivation of Liberty cases concerning patients of all ages so please do get in touch if you have any tricky cases you wish to discuss

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