The Court of Appeal has handed down its decision in Re D (a child) [2017] EWCA Civ 1695 <!--[if !supportLineBreakNewLine]-->

D’s case has been considered by the Courts on 2 previous occasions-  first when he was 15 and when Keehan J concluded that the consent of his parents could be relied upon to deprive him of his liberty in a psychiatric hospital (Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam), [2016] 1 FLR 142) and secondly when he was 16 years old (Birmingham City Council v D [2016] EWCOP 8, [2016] PTSR 1129).  In this second case Keeehan decided that parental consent (under s20 Children Act 1989) could not be relied upon to authorize an objective deprivation of  D’s liberty in the community.  Keehan J further held that D’s living arrangements were imputable to the state in the form of the local authority who had taken the lead in finding the placement, designing it with the relevant health professionals and funding it .  The local authority appealed.  As with the disabled adults at the centre of P v Cheshire West ([2014] UKSC 19), there was no dispute that D’s living arrangements were in his best interests.

D’s living arrangements were summarized by Keehan J:

23        Placement B is set within its own grounds in England. In addition to the main house there are 12 self-contained residential units on the site each with its own fenced garden. D resides at House A with three other young people of a similar age. The educational facility D attends is on the Placement B site. He is taught in a class with four other young people.

29                    As at Hospital B, D is under constant supervision and control. His life at Placement B, is described as follows:

“D has his own bedroom. All external doors are locked and D is not allowed to leave the premises unless it is for a planned activity.

“D receives one-to-one support throughout his waking day, and at night, the ratio of staff to students is 2:1. He is not initially allowed unaccompanied access to the community.

“D attends school every weekday from 8.45 am to 2.00 pm. He then eats his lunch on return to House A. He will then get changed and partake in leisure activities. Currently every Thursday afternoon D attends swimming and will eat his dinner outside of House A with staff.

“House A has all entrances and exits to the building locked by staff. When wishing to go out into the garden D needs to request a staff member to open the door. These doors are sometimes left open when there is a group leisure activity in the garden.

“D will be having contact with his parents each Saturday for up to five hours. Currently his parents have been visiting for three hours as D does get increasingly anxious during this time. There have been no significant issues since D’s move to Placement B.”

At the start of the judgment Munby LJ reminded himself of the three components which must be present to amount to deprivation of liberty for the purpose of Article 5 (following Storck v Germany (2005) 43 EHRR 96 :

  • the objective component (which he referred to as “confinement”)
  • the subjective component (lack of consent)
  • imputability to the State.

The grounds of appeal were that:

  • the judge was wrong to find that a parent cannot consent to arrangements for a child that amount to a deprivation of liberty
  • the judge was wrong to find that the arrangements were imputable to the state
  • the judge was wrong to find that D was deprived of his liberty “having regard to the procedures ensuring that arrangements for 16/17 years olds, including those lacking capacity, are monitored.

Munby LJ read into the concept of being “free to leave” for the purpose of the “acid test” in Cheshire West, his definition in JE v DE [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, para 115:

“The fundamental issue in this case … is whether DE was deprived of his liberty to leave the X home and whether DE has been and is deprived of his liberty to leave the Y home. And when I refer to leaving the X home and the Y home, I do not mean leaving for the purpose of some trip or outing approved by SCC or by those managing the institution; I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses …”

In addressing the application of Article 5 to children Munby JL compared the living arrangements of 2 children aged between 3 and 8, one living with her parents and the other in foster care.  Both would be not free to leave and under the complete supervision and control of others.  Is one deprived of her liberty for the purpose of Article 5 because the state has placed her in foster care? This comparison also appears in Munby LJ’s judgment in Cheshire West v P [2011] EWCA Civ 1257 at [43]:

“Suppose that there are two children of the same age in the playpen, one the mother's own daughter, Lucinda, the other, Lucy, a girl placed in her care by the local authority as a foster child in accordance with the provisions of the Children Act 1989. In relation to Lucinda the mother has parental responsibility as defined in section 3(1) of the Act. In relation to Lucy she does not have parental responsibility, only the much more restricted powers conferred by section 3(5). The local authority is responsible for Lucy's placement with the mother but has no responsibility at all for Lucinda. It would surely be absurd to suggest that Article 5 is engaged in Lucy's case but not in Lucinda's, let alone to suggest that Lucy is being deprived of her liberty while Lucinda is not.

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In Re D, Munby interpreted the Supreme Court’s judgment in Cheshire West as authority for the proposition that [37]

In accordance with Nielsen, there are circumstances in which the consent by a “holder of parental authority” – in domestic terms, someone with parental responsibility – will provide a valid consent for the purposes of Storck component (b) to something which is a “confinement” for the purposes of Storck component (a). Those circumstances, although “extensive”, are not “unlimited.”   

The decision:

Imputable to the State?

Importantly Munby LJ rejected the submission that D’s living arrangements were imputable to the state.  This part of Keehan’s judgment remains good law.

Confinement?

The Court of Appeal did not disturb the finding that D was “confined”, dealing with this briefly at paragraghs 47 and 48.

Valid consent?

Munby LJ reviewed the definition of “parental responsibility” from the nineteenth century onwards, noting Lord Denning’s definition in Hewer v Bryant 1970] 1 QB 357,  of  the “legal right of a parent to the custody of a child” as:

“a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.”

He saw continuity from this definition and the decision in Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112. 

"This aspect of……Gillick is of particular importance in a case such as the one we are considering, for if, in the nature of things, it cannot define it does at least identify the principles by which one can in any particular situation determine the ambit or extent of parental responsibility – what Keehan J in his judgments has usefully described as the extent of the “zone” of parental responsibility [78]"

As the court concluded in Gillick, The point at which a child reaches the “age of discretion” is not fixed.  Gillick capacity is “child-specific” and is determined by the understanding and intelligence of the child in question.

He commented on In re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] Fam 377 (a case about the use of secure accommodation under s25 Children Act 1989) :

"What In re K shows, in my judgment, are two things: first, that many aspects of the normal exercise of parental responsibility that interfere with a child’s freedom of movement do not involve a deprivation of liberty engaging article 5, even if they may involve a restriction on liberty of movement; and, secondly, that parental responsibility cannot justify the imposition of a regime equivalent to that imposed by “secure accommodation”. What the case did not address is whether parental responsibility can justify the imposition of a regime which, falling short of that imposed by secure accommodation, nonetheless satisfies the Storck component (a) acid test. That, of course, was not a question which was before the court; it is, of course, the question subsequently resolved (see paragraph 37 above) by Cheshire West. The answer, as we have seen, is ‘yes it may’."

Munby LJ approved of Keehan J’s conclusion in Re D [2015] EWHC 922 that  placing a 15 year old without D’s disabilities in the unit where he lived in hospital would undoubtedly be an inappropriate exercise of parental responsibility.  However, in D’s particular circumstances, “The decision to keep an autistic 15-year-old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter”.  

He did not however accept Keehan’s reasoning that  the applicability of the Mental Capacity Act to those of 16 and upwards was a “bright line” and that parents could not consent to a “confinement” of a 16 year old.  This is because Munby LJ found this to be inconsistent with the Gillick principle that there is no fixed point at which parental responsibility comes to an end. 

He went on to say [150] :

“ I agree with Keehan J that the mere fact that a child is being accommodated by a local authority pursuant to section 20 does not, of itself, constitute a parental consent for Nielsen purposes to the particular confinement in question. In the first place it needs to be borne in mind that parental consent is not, in law, an essential pre-requisite to a local authority’s use of section 20: see Williams and another v Hackney London Borough Council [2017] EWCA Civ 26, [2017] 3 WLR 59. Moreover, even where there is such consent, there remains the powerful point made by Keehan J: to what precisely have the parents consented? That is a matter of fact to be decided in light of all the circumstances of the particular case. Here, as we have seen, Keehan J, found (see paragraph 9 above) that his parents had agreed to D’s being placed at Placement B just as he had earlier found (paragraph 107 above) that they had previously agreed to his being placed at Hospital B. I can see no basis for challenging either of those findings of fact.”

He therefore allowed the appeal on the basis that D’s parents could- and did- consent to D’s placement, including the confinement (or objective deprivation of liberty) and that this was a proper exercise of parental responsibility.

Comment:

Some commentators saw Keehan J’s distinction between an appropriate  exercise of parental responsibility for a non-disabled child and  the exercise of responsibility for a child with D’s disabilities as a return of the concept of “relative normality” that was comprehensively rejected by the Supreme Court in Cheshire West. 

It is noteworthy that the Court of Appeal rejected the submissions of the Equality and Human Rights Commission that

“If parental responsibility includes a power to give valid consent to an objective deprivation of liberty that is imputable to the State, but only in respect of mentally disordered or disabled young people (or only such young people who are not Gillick competent), that would violate Article 14 EHCR read with Article 5 and/or Article 8, as well as the provisions of the CRPD and CRC.”

These submissions were considered to be inconsistent with the principle in Gillick that the chronological age of a child cannot be determinative.

Following this judgment local authorities will not need to apply to the court for authority in all cases where a person under 18 is “confined” with their parents’ consent under arrangements made by the local authority.  They will however have to consider carefully in the circumstances of each case whether such consent is an appropriate exercise of parental responsibility.  Given however the emphasis on the evolving maturity of the child or young person, this will have to kept under careful review in each case.

The implications of the judgment however go further, and may have an impact on decisions to admit children informally to hospitals relying on parental consent. At 19.24 the Mental Health Act Code of Practice states that children under 16 should be assessed for “Gillick competence” while those of 16-17 should be assessed under the Mental Capacity Act.  This judgment throws doubt on that guidance, and may lead to confusion amongst practitioners as to which framework should be applied.

Lastly, although relegated to a footnote, a warning to practitioners from the President:

“I note with weary resignation, although the responsibility for this appears to be that of the court rather than the parties, that this order, as so many others, was headed “In the High Court of Justice Court of Protection”. The Court of Protection is not part of the High Court, so orders made by the Court of Protection should not be headed “In the High Court of Justice”: see section 45 of the 2005 Act. Is it too much to hope that, ten years after the Court of Protection came into being, this simple truth might be more widely understood and more generally given effect to?”