Re D – the Supreme Court, 16/17 year olds and confinement

In Re D [2019] UKSC 42, the Supreme Court has held (by a majority) that where a 16 or 17 year old child cannot (or does not) give their own consent to circumstances satisfying the ‘acid test’ in Cheshire West, and if state either knows or ought to know of the circumstances, then the child is to be seen as deprived of their liberty for purposes of Article 5 European Convention of Human Rights, and requires the protections afforded by that Article. That is so whether or not their parent(s) are either seeking to consent to those arrangements if imposed by others or directly implementing them themselves.

In this note, I set out the background, the reasoning of the majority (Hale, Black and Arden SCJJ) and the minority (Carnwath and Lloyd-Jones SCJJ), highlight issues not addressed, and finally set out some practical implications. We will in the next Mental Capacity Report provide commentary upon the decision.

Background

This decision brings to a conclusion a saga that began in 2015 in relation to a (then) 15 year old child, D, who was diagnosed with attention deficit hyperactivity disorder at the age of four, Asperger’s syndrome at seven, and Tourette’s syndrome at eight. He also has a mild learning disability. His parents struggled for many years to look after him in the family home, despite the many difficulties presented by his challenging behavior. Eventually, in October 2013 when he was 14, he was informally admitted to a psychiatric hospital for multi-disciplinary assessment and treatment. The hospital trust responsible recognised that he was confined, and sought authority for that confinement from the High Court under its inherent jurisdiction. At the point his case came before the High Court, Keehan J had held that the fact that his parents were consenting to the confinement meant that he was not deprived of liberty: Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam). Subsequently discharged from hospital, D was confined in a residential placement with his parents’ agreement under section 20 of the Children Act 1989. That confinement included, materially, that the external doors were locked, that D was not allowed unsupervised, that he received to one support during waking hours and staff were in constant attendance overnight.

In a case brought by Birmingham City Council, as responsible for his placement, Keehan J held [2016] EWCOP 8 that D’s parents’ continuing consent to the arrangements could not be relied upon after he turned 16 to prevent his circumstances being seen as a deprivation of liberty for purposes of Article 5 ECHR. The Court of Appeal overturned his decision ([2017] EWCA Civ 1695). The Supreme Court has now allowed the Official Solicitor’s appeal (on behalf of D), declaring that D was at the material times to be seen as deprived of his liberty for purposes of Article 5 ECHR.

The issue

As Lady Hale, in the majority, identified, the case was about:

[…] the interplay between the liberty of the subject and the responsibilities of parents, between the rights and values protected by article 5 and the rights and values protected by article 8, and between the relationship of parent and child at common law and the Convention rights. The principal issue can be simply stated: is it within the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of article 5?

Reasoning: the majority

Lady Hale founded her decision ultimately upon her analysis of Article 5 ECHR, although she acknowledged the force of the analysis of Lady Black to the effect that, even at common law, a parent does not have power to bring about a confinement of their child.   Article 5 contains three limbs (sometimes called the Stork criteria after the Strasbourg case in which they were first identified): (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the State.

Lady Hale considered the crux of the issue under Article 5 to be:

39. […] whether the restrictions fall within normal parental control for a child of this age or do they not? If they do, they will not fall within the scope of article 5; but if they go beyond the normal parental control, article 5 will apply (subject to the question of whether parental consent negates limb (b) of the Storck criteria […]).

In contrast to the Court of Appeal, she found that “quite clearly,”

the degree of supervision and control to which D was subject while in Placement B and Placement C was not normal for a child of 16 or 17 years old. It would have amounted to a deprivation of liberty in the case of a child of that age who did not lack capacity. The question then arises what difference, if any, does D’s mental disability make?

Looking back to the discussion of Lord Kerr in Cheshire West as to the application of Article 5 to children at different ages, and consistent with the approach of the majority in that decision, Lady Hale found that D’s mental disability made no difference: “a mentally disabled child who is subject to a level of control beyond that which is normal for a [non-disabled] child of his age has been confined within the meaning of article 5.”

Lady Hale found, further, that there was no support in Strasbourg case-law for a parent (or anyone else) to give substituted consent so as to take a confinement out of the scope of Article 5 ECHR. She considered that, in cases where it was said that valid consent had been given, “it is because the evidence showed that the person concerned was willing to stay where he or she was and was capable of expressing that view” (para 42).

Birmingham had, at an earlier stage, argued that the fact that D was placed subject to the agreement of his parents (recorded under s.20 Children Act 1989) meant that the confinement to which he was subject was not imputable to the state. Before the Supreme Court, Birmingham abandoned that argument, “rightly so,” according to Lady Hale:

43 […] Not only was the State actively involved in making and funding the arrangements, it had assumed statutory responsibilities – albeit not parental responsibility – towards D by accommodating him under section 20 of the Children Act 1989, thereby making him a “looked after child”. Even without all this, it is clear that the first sentence of article 5 imposes a positive obligation on the State to protect a person from interferences with liberty carried out by private persons, at least if it knew or ought to have known of this: see, for example Storck, para 89.

On the face of it, therefore, all three requirements for a deprivation of liberty had been met, a conclusion Lady Hale considered to be:

45 […] consistent with the whole thrust of Convention jurisprudence on article 5, which was examined in great detail in Cheshire West. But it is reinforced by the consideration that it is also consistent with the principle of non-discrimination in article 2.1 of the United Nations Convention on the Rights of the Child, which requires that the rights set out in the Convention be accorded without discrimination on the ground of, inter alia, disability, read together with article 37(b), which requires that no child shall be deprived of his liberty unlawfully or arbitrarily, and article 37(d), which requires the right to challenge its legality. It is also consistent with article 7.1 of the United Nations Convention on the Rights of Persons with Disabilities, which requires all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.

Lady Hale, however, had to return back to the concept of parental responsibility to ask whether there was any scope for the operation of parental responsibility to authorise what would otherwise be a deprivation of liberty? There were two contexts in which this might arise, she considered:

  1. Where the parent is the detainer or uses some other private person to detain the child. However, as Lady Hale observed, “in both Nielsen and Storck it was recognised that the state has a positive obligation to protect individuals from being deprived of their liberty by private persons, which would be engaged in such circumstances.”
  2. Where the parent seeks to authorise the state to do the detaining. However, Lady Hale considered it would be a “startling proposition that it lies within the scope of parental responsibility for a parent to license the state to violate the most fundamental human rights of a child.” Even if that proposition might not hold good for all the Convention rights, in particular the qualified rights which may be restricted in certain circumstances, “it must hold good for the most fundamental rights – to life, to be free from torture or ill-treatment, and to liberty. In any event, the state could not do that which it is under a positive obligation to prevent others from doing.”

Lady Hale therefore concluded that it was:

49 [….] not within the scope of parental responsibility for D’s parents to consent to a placement which deprived him of his liberty. Although there is no doubt that they, and indeed everyone else involved, had D’s best interests at heart, we cannot ignore the possibility, nay even the probability, that this will not always be the case. That is why there are safeguards required by article 5. Without such safeguards, there is no way of ensuring that those with parental responsibility exercise it in the best interests of the child, as the Secretaries of State acknowledge that they must.

Lady Black agreed with Lady Hale’s reasoning and conclusion, and devoted her judgment:

  1. To a detailed historical exegesis of the common law, which led her (at paragraph 90) to conclude that “as a matter of common law, parental responsibility for a child of 16 or 17 years of age does not extend to authorising the confinement of a child in circumstances which would otherwise amount to a deprivation of liberty;” and
  2. To a detailed analysis of the relevance of s.25 Children Act 1989, which the court had of its own motion raised after the hearing, and which has separately been troubling the appellate courts. Although ultimately Lady Black was careful to make clear that she was not reached a concluded view, which would have to await the appropriate case, she noted (at paragraph 113) in observations which had the support of Lady Hale and Lady Arden that “[t]he exercise in which we have engaged has, however, been sufficient to persuade us that section 25 is not intended to be widely interpreted, so as to catch all children whose care needs are being met in accommodation where there is a degree of restriction of their liberty, even amounting to a deprivation of liberty,” and that “[t]here is much force in the argument that it is upon the accommodation itself that the spotlight should be turned, when determining whether particular accommodation is secure accommodation, rather than upon the attributes of the care of the child in question.”

Lady Arden agreed with Lady Hale, but also highlighted that there will be:

120 […] cases where a person loses their liberty but the acid test in Cheshire West, as Lady Hale describes it, does not apply. That conclusion is shown by observing that D’s case is about living arrangements. It is not about a child, or anyone else, needing life-saving emergency medical treatment. For the reasons which the Court of Appeal (McFarlane LJ, Sir Ross Cranston and myself) gave in R (Ferreira) v Inner South London Senior Coroner [2018] QB 487, the situation where a person is taken into (in that case) an intensive care unit for the purpose of life-saving treatment and is unable to give their consent to their consequent loss of liberty, does not result in a deprivation of liberty for article 5 purposes so long as the loss of liberty is due to the need to provide care for them on an urgent basis because of their serious medical condition, is necessary and unavoidable, and results from circumstances beyond the state’s control (para 89).

Reasoning: minority

Lord Carnwath, with whom Lord Lloyd-Jones agreed, dissented, associating himself (in essence) with the reasoning of the former President, Sir James Munby, in the Court of Appeal below, and analysing Nielsen as a decision which “provide[d] amply sufficient support Strasbourg case law for the President’s reliance on equivalent domestic law principles to determine the present case.”

Interestingly, however, Lord Carnwath, in addressing Lady Black’s judgment, noted that, “[f]or the moment I remain unconvinced that the earlier cases can be relied on to limit the scope of the judgments in Gillick in the way she proposes, or that the President’s conclusions is undermined,” but that he “acknowledge[d] that this approach, if correct, may have advantages for the certainty and coherence of the law, particularly if taken with another important point which emerges from her review of the earlier cases. That is the willingness of the courts since the 19th century to take guidance from the legislature as to where to draw the lines in relation to the limits of parental responsibilities (see para 60, citing Cockburn CJ in R v Howes (1860) 3 El & El 332). In the present case there is the added consideration that, as noted above (para 8), the exclusion of those under 16 from the new legislative scheme appears at least in part to be a reflection of the legislature’s understanding of the law following Keehan J’s judgment, which to that extent may be seen as having the implicit endorsement of Parliament.

Points not addressed

The majority were careful to make clear that they were not pronouncing upon the operation of parental responsibility in relation to other areas in respect of children under 18, leaving open the potential for (for instance) medical treatment decisions in relation to 16/17 year olds lacking capacity to be considered either by reference to the best interests decision-making process under the MCA 2005 or by the provision of a substituted consent by a parent exercising parental responsibility. Lady Black was, however, at pains, to emphasise that: “nothing that I have said is intended to cast any doubt on the powers of the courts, recognised in the early cases to which I have referred, and still available today in both the parens patriae jurisdiction and under statute, notably the Children Act 1989, to make orders in the best interests of children up to the age of majority, with due regard to their wishes and those of their parents, but not dictated by them” (paragraph 90, Lady Hale expressly associating herself with these observations).

Lady Hale recognised that the conclusion that she reached in relation to those over 16 would “logically” also apply to a younger child whose liberty was restricted to an extent which was not normal for a child of his age.” However, the question did not arise in the case, and she preferred to expressed no view upon it. Lady Black, equally, expressed a desire to leave this separate question “entirely open” to be decided in a case in which it arises.   Lord Carnwath noted Lady Hale’s observation about the logical application of her conclusion “with concern,” and sought to emphasise that, for the time being, Keehan J’s conclusion that parental agreement can operate to prevent a confinement being a deprivation of liberty in relation to those under 16 remains good law.

Practical implications

The practical implications of this judgment are dramatic, but perhaps less dramatic than they would have been had the question of the scope of parental responsibility in this area not been so thoroughly canvassed in the Law Commission’s Mental Capacity and Deprivation of Liberty report leading, ultimately, to the inclusion of 16/17 year olds within the potential scope of the Liberty Protection Safeguards. I say ‘potential’ scope, because any deprivation of liberty to which they are subject can only be authorised under the LPS if they lack capacity to consent to the relevant arrangements applying the MCA 2005; the Supreme Court did not expressly address whether there may remain a cohort of 16/17 year olds who have capacity to consent to confinement but lack Gillick competence.

The judgment acknowledges the ‘nuancing’ of the acid test that Lord Kerr had proposed in relation to younger children in Cheshire West but its tenor is very much to the effect that there is little or no material nuancing to undertake in relation to those aged 16 or 17. In other words, the acid test is likely to apply without modification to a 16/17 year old, subject only to the ‘carve-out’ for everyone identified in Ferreira and clarified by Lady Arden in this judgment in relation to life-sustaining emergency medical treatment.

In light of this judgment, and as they should already have been doing as part of their preparation for LPS,[1] public authorities will need to consider the circumstances of 16/17 year olds for whom they have responsibility, whether that be under the Children Act 1989, the Social Services and Well-Being Act (Wales) Act 2014, the Children and Families Act 2014, the NHS Act, or otherwise. They will also need to be alert to situations where ‘private’ confinements may be under way in relation to 16/17 year olds in their own homes, or in private schools/colleges, because (as Lady Hale has re-confirmed) state imputability arises where the state knows or ought to know of such private confinements.

If the circumstances of a 16/17 year old meet the ‘acid test’ and they cannot or do not consent to their confinement, then if either those circumstances cannot be changed, or they cannot be supported to consent (freely) to them, lawful authority will be required to deprive them of their liberty (precisely who will need that authority will depend upon the facts of the case). Prior to the coming into force of the LPS in October 2020, the only “procedure prescribed by law” that can operate to provide the necessary lawful authority are:

  1. The MHA 1983, where this applies – a consequence of this judgment, and of the nature of most psychiatric hospitals/units, most of which give rise to confinement, is that it is most unlikely that there will be any place for informal admission for 16/17 year olds on the basis of parental consent;
  2. Section 25 Children Act 1989, where relevant, and bearing in mind the detailed observations by Lady Black about its scope;
  3. An order of the court. Whether this court will be the Court of Protection or the High Court under its inherent jurisdiction will depend upon the facts of the case, but as a general rule it is more likely that the right court will be the Court of Protection (by a so-called Re X COP DOL11 application – for guidance, see here). If the right court is the High Court, then the procedure will be as set down by Sir James Munby P in Re A-F (Children) (No 2) [2018] EWHC 2129 (Fam), although note that the judgment does not discuss that there are two potential grounds upon which deprivation could be justified, Article 5(1)(d) and Article 5(1)(e), and we suggest that it is necessary for the application to be clear as to which is relied upon, as this will dictate the evidence required, and the nature of the test to be applied by the court. In the case of those children who do not lack capacity (or, if relevant competence) I anticipate that public bodies and the courts will be dusting off copies of In Re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] Fam 377 to examine the scope of Article 5(1)(d) to justify deprivation of liberty “of a minor by lawful order for the purpose of educational supervision.”

As, in due course, the situation of 16/17 year olds lacking capacity to consent applying the MCA 2005 will fall to be considered under the Liberty Protection Safeguards, the judgment therefore reinforces the need for children’s services in local authorities and NHS bodies with responsibility for under 18s to undertake the necessary work to prepare for LPS come 1 October 2020.

[1] It being common ground that the operation of parental responsibility was ineffective to prevent confinement equating to deprivation of liberty where the child is the subject of a care order, although as Lady Hale noted (at paragraph 18), quite what the basis was for this distinction was not clear.

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