D (A Child) [2019] UKSC 42
The UK Supreme Court examined whether it is within the scope of parental responsibility to consent to living arrangements for a 16-17 year old child that would amount to a deprivation of liberty under article 5 of the European Convention of Human Rights (ECHR), including for a child unable to make such a decision due to a lack of mental capacity. The Court held that the scope of parental responsibility does not include such a consent (paragraph 49).
Details
D had been diagnosed with ADHD, Asperger’s and Tourette’s syndrome. At age 14, the child was admitted to a hospital which provided mental health services for children 12-18. He lived at the hospital and attended school there. The external door was locked and D was checked on by staff every half hour.
The hospital trust applied to the High Court for a declaration that it was lawful for them to deprive D of his liberty. The court determined that the D’s living conditions amounted to a deprivation of his liberty under article 5 of the ECHR, but that it was a proper exercise of parental responsibility to consent while D was under 16.
By the time of this judgement, D had been discharged to a residential placement which operated under similar restrictions to the hospital. On D’s 16th birthday, Court of Protection proceedings were issued, asking for a declaration that the consent of D’s parents to the placement meant that he was not deprived of his liberty. The court held that the parents could no longer provide such consent now that D was 16, as the Mental Capacity Act 2005 clearly applied to those 16 and older. Subsequently, D was moved to another residential placement, authorised by a Court of Protection.
The Supreme Court recounted the three components held by the European Court of Human Rights to amount to deprivation of liberty under article 5: a) the objective component of confinement; b) the subjective component of lack of valid consent; and c) the confinement was attributable to the State [paragraph 1]. Limbs (a) and (c) were not in dispute throughout this case, which thus turned on limb (b).
The Court held that the two placements amounted to a deprivation of liberty under article 5, and the fact that D’s parents agreed to them did not negate that, as it is not within the scope of parental responsibility to consent on a 16-17 year old child’s behalf to a deprivation of their liberty [paragraph 44; 49]. The procedural safeguards of article 5 therefore applied. 1 Lady Hale also noted that the safeguards in the Mental Capacity (Amendment) Act 2019 will apply to 16-17-year olds in the future.
Commentary
This judgement narrowly focuses on 16-17-year old children. Nevertheless, advocates, particularly those representing disabled children, should keep in mind the important safeguard promoted by the Court, that parents cannot consent on behalf of a 16-17-year old child’s for purposes of article 5, including if the child lacks mental capacity. Therefore, in matters where limb (b) is met, procedural safeguards required by article 5 must apply. These principles may also logically apply to younger children, as stated by Lady Hale in dicta.
- In D’s case, as both residential placements were authorised by a High Court Judge in a Court of Protection, and all agreed the placements were in D’s best interests, the Court did not consider D’s article 5 rights violated. (back)