The Court of Appeal ( EWCA Civ 1695) has allowed the appeal by Birmingham City Council (‘Birmingham’) against the judgment of Keehan J ( EWCOP 8), in which he held that parents could not consent to the confinement of their 16 or 17 year old children. As I am instructed in the case (on behalf of D) I will not provide a commentary upon it, but set out a summary below.
The lead (lengthy) judgment was given by Sir James Munby P with short, predominantly concurring, judgments from David Richards and Irwin LJJ.
Sir James Munby P rejected two out of the three grounds of appeal advanced by Birmingham. He dismissed Birmingham’s argument that: (1) the arrangements for D were not attributable to the state (paragraphs 41-6); and (2) that there was sufficient monitoring for looked after children such as D that it was legitimate to depart from Cheshire West and conclude that he was not deprived of his liberty (paragraphs 47-9).
Sir James Munby P, however, found that Keehan J had erred in his conclusion that a parent cannot consent to a confinement of a child aged 16 or 17 (i.e. a state of affairs satisfying the ‘acid test’ defined in Cheshire West). His reasons for so doing are lengthy, and rehearse a significant body of 19th case-law that was not the subject of argument before the court. In summary, however, his key conclusions were as follows.
First, the Strasbourg decision in Nielsen was a case about the second limb of Storck (i.e. about consent, rather than about the objective element of confinement), and that this proposition had been endorsed by Lady Hale in Cheshire West (paragraphs 26 and 37).
Second, in line with Nielsen, there are circumstances where consent by a holder of parental authority (i.e. in domestic terms a person with parental responsibility) can provide valid consent for Storck purposes (paragraph 37).
Third, the relevant rights of a person with parental authority for Nielsen (and hence Article 5 ECHR) purposes are determined by reference to domestic law (paragraph 50). For reasons set out at very considerable length in the section that follows, the President concluded that the domestic – common – law provides that parental responsibility is in principle exercisable in relation to a 16 or 17 year old child who “for, whatever reason, lacks Gillick capacity/competence (paragraphs 84-5 and 128).
Fourth and finally, none of the statutory provisions relied upon by Keehan J to identify a dividing line between under 15s and over 16s bore either expressly or by implication upon the ambit and extent of parental responsibility established by the common law (paragraph 125), and nor did the international conventions put before the court (paragraphs 136-140), or arguments based upon discrimination (paragraphs 141-146).
Sir James Munby P (at paragraphs 30-9) and Irwin LJ (at paragraphs 158-9) both made observations upon the position in relation to children below the age of 16, relying upon the dicta of Lord Kerr in Cheshire West to hold that the situation of the “young” or “very young” child does not involve confinement for Article 5 purposes. David Richards LJ declined to express a view upon their position (paragraph 154).
The Court of Appeal did not address three matters.
First, the Court of Appeal did not expressly address the nature of D’s confinement, described in the first instance judgment thus:
“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.
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.”
It, is, though, is implicit in the judgment that the Court of Appeal considered D’s circumstances must be “within ordinary acceptable parental restrictions” (the phrase used in Re K  Fam 377 by Dame Elizabeth Butler-Sloss P and adopted by the Court of Appeal here at paragraphs 77-8). In other words, the Court of Appeal must have considered that D’s confinement was capable of being authorised by the exercise of parental responsibility so as to take it out of the scope of Article 5 ECHR.
Second, the Court of Appeal did not address how the concept of “Gillick capacity” differs from or is (in principle or practice) to be distinguished from mental incapacity for purposes of s.2(1) MCA 2005 in relation to those aged 16 and 17. At paragraph 143, the President observed that an approach founded upon discrimination law did not explain whether “lack of ‘Gillick’ capacity is, for purpose of discrimination law, an aspect of disability,” but he did not specifically address the question himself.
Third, the Court of Appeal did not directly address whether only a ‘true’ holder of parental responsibility can give the necessary consent or whether it can be given by a deemed holder in the form of a local authority. Sir James Munby P noted (at paragraphs 109 and 110) that Keehan J had held in Re AB  EWHC 3125 (Fam) that it could not be given by a local authority given (shared) parental responsibility by virtue of an interim care order, but did not comment upon the correctness of this conclusion, on an issue which was not before the Court of Appeal (paragraph 109).
The commentary in the next 39 Essex Chambers Mental Capacity Report will no doubt include an update on any appeal; pending that commentary, readers may well find the comment by Ben Troke of Browne Jacobson available here to be of interest.