Parental consent still amounts to a deprivation of liberty
The Supreme Court has overturned the Court of Appeal's ruling in the matter of D (A Child)  UKSC 42.
In a decision with wide-ranging implications for all those in the social care sector, the Supreme Court has overturned, by a majority of 3:2, the Court of Appeal’s ruling that where a 16- or 17-year-old child lacked capacity, his or her parents could consent to arrangements which would otherwise amount to a deprivation of liberty.
D was born in 1999 and has attention deficit hyperactivity disorder, Asperger’s syndrome and Tourette’s syndrome, and has a mild learning disability. Aged 14 he was admitted to a hospital providing mental health services, for assessment and treatment, living in the hospital grounds and attending a school which was part of the unit. The external door was locked and D was accompanied whenever he left the site. The hospital trust applied to the High Court for a declaration that it was lawful for the trust to deprive D of his liberty in this way and the judge held that D was so deprived but that it was a proper exercise of parental responsibility to consent to his constant supervision and control while he was under 16.
By then, with his parents’ agreement, and with Birmingham City Council (‘the council’) accommodating him under section 20 of the Children Act 1989, D had been discharged from hospital to a residential placement, where he was similarly under constant supervision and not allowed to leave except for planned activity. On his 16th birthday proceedings were issued in the Court of Protection for a declaration that the consent of D’s parents meant that he was not deprived of his liberty at the placement. The judge held that his parents could no longer consent to what would otherwise be a deprivation of liberty once D turned 16, and that the provisions of the Mental Capacity Act 2005 now applied. He authorised the placement and a subsequent transfer to another similar placement as being in D’s best interests. When D reached the age of 18, his deprivation of liberty could be authorised under the deprivation of liberty safeguards (DoLS) in the Mental Capacity Act.
The council’s appeal to the Court of Appeal was allowed, on the basis that parents could consent to what would otherwise be a deprivation of liberty of a 16 or 17-year-old child who lacked the capacity to decide for himself, and the Mental Capacity Act had no bearing on this and it was this decision which was the subject of the appeal to the Supreme Court.
The Supreme Court’s decision
Giving the leading judgment, Lady Hale concluded that the case turns on the inter-relationship between the concept of parental responsibility, as defined by the Children Act 1989, the common law and other relevant statutory provisions, and the obligation of the State to protect the human rights of children under the European Convention on Human Rights.
Historically, parental rights under domestic law were never absolute and became increasingly subject to the overriding consideration of the child’s own welfare. Similarly, the power of physical control dwindled as the child acquired sufficient understanding and intelligence to make their own decisions - the age of discretion - which could be before the age of majority (known as ‘Gillick competence’ after the case of Gillick v West Norfolk and Wisbech AHA  1 AC 112). Gillick is not directly relevant to the question of whether parental authority endures beyond the age of discretion, if the child lacks capacity to make decisions.
Lady Hale went on to observe that the Mental Capacity Act does not override other common law and statutory provisions relating to 16 and 17-year-old children, but it does indicate an appreciation of the different needs of this age group. Article 5 of the European Convention on Human Rights protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty. Self-evidently, the degree of supervision to which D was subject was not normal for a child of 16 or 17 and D’s living arrangements had to be compared with those of children of the same age without disabilities, and the fact that they were made in his best interests did not mean he was not deprived of his liberty.
In the circumstances, the court concluded, parental consent could not substitute for the subjective requirement under Article 5 for valid consent to the deprivation. Lady Hale went on to note that human rights are about the relationship between private persons and the state, and D’s deprivation of liberty was attributable to the state. There was, she said, no scope for the operation of parental responsibility to authorise what would otherwise be a violation of a fundamental human right of a child.
Conclusions and implications
This decision will cause a degree of consternation among already overstretched local authorities who had, under the Court of Appeal’s ruling, been able to rely on the consent of a parent to confine a 16 or 17 year old in a situation which would otherwise amount to a deprivation of their liberty. They will no longer be able to do so and will need to act accordingly for each 16 or 17 year old under their care.
With the advent of the new Liberty Protection Safeguards, due to come in to force in October 2020, the situation should be more straightforward because they will apply from age 16, instead of 18, as the DoLS do.