Judge: Court of Appeal (Sir James Munby P, Richards and Irwin LJJ)
Citation:  EWCA Civ 1695
This significant ruling by the Court of Appeal concerns the extent to which parents are able to consent to the confinement of their incapacitated children in light of Cheshire West. Previously, when he was 15, his parents had agreed to him being confined in a mental health hospital and Keehan J had held that such consent meant that he was not deprived of liberty: Re D (A Child) (Deprivation of Liberty)  EWHC 922 (Fam). Subsequently discharged from hospital, D was confined in what was essentially a residential school with his parents’ agreement under section 20 of the Children Act 1989. Keehan J had held that such parental consent could not be relied upon after he turned 16:  EWCOP 8. It was this second decision that was the subject of the appeal.
Allowing the appeal, the outcome of the Court of Appeal’s judgment is that there is no bright line at 16 so parents can continue to consent to such confinement up to the age of 18 if that is an appropriate exercise of their parental responsibility. As a result, although D satisfied the acid test, he was not deprived of liberty because there was valid consent from his parents. The corresponding judicial safeguards were therefore not required until he became an adult. Before analysing the judgment in detail, my understanding of the present position is that:
The relationship between assessing capacity under the MCA and as per Gillick is discussed in the commentary below.
(a) Objective element: a nuanced acid test for under 18s?
The essential character of a deprivation of liberty (the so-called Storck-criteria) consists of:
The present case primarily concerned the second of these. But the local authority contended that the existing monitoring arrangements for looked after children meant that D was not deprived of liberty. This was rejected because these arrangements, such as the independent reviewing officer, did not afford the sufficiently independent safeguards and checks required by Article 5 (para 48).
Sir James Munby P (at paras 30-9) and Irwin LJ (at paras 158-9) both made observations in relation to the confinement of children, about which David Richards LJ preferred not to express a view (para 154). The President observed, “Insofar as Cheshire West provides the answer, it is to be found in the judgment of Lord Kerr,” who used a comparator approach to confinement for those under 18 which involves:
The President held:
Irwin LJ also noted:
158… Although it is not necessary for the decision in this case, I also agree with the President that the question whether there is “confinement” should be approached in the careful way analysed by Lord Kerr in Cheshire West, at paragraphs 77 to 79 … For all present purposes, “confinement” means not simply “confining” a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding.
Furthermore, the Court expressly interpreted what had previously been implied, namely that in Cheshire West, the freedom to leave component of the acid test did “not mean leaving for the purpose of some trip or outing approved by [others]” but rather “leaving in the sense of removing himself permanently in order to live where and with whom he chooses…” (para 22).
(b) Subjective element: scope/zone of parental responsibility?
This was the crux of the appeal. The court fully endorsed the Strasbourg decision in Nielsen v Denmark (1988) 11 EHRR 175 – applying it to under 18s – and recognised the continued role of Gillick incapacity/incompetence beyond the age of 16. In short, the court held:
(c) State imputability
The court rejected the submission that the care arrangements were not imputable to the state for the reasons given at first instance (paras 41-46). Accordingly, it followed that although confined with state imputability, D was not deprived of his liberty for Article 5 purposes because there was valid consent to such confinement by his parents.
The Court of Appeal’s endorsement of Lord Kerr’s more nuanced acid test is most welcome as it endorses a common-sense approach to Article 5 for those under 18. In my view, a typical 3- or 8-year-old child, for example, living in a family home or foster home at the same developmental stage as most children of that age would plainly not satisfy the acid test.
Where a child is confined, it is important for local authorities to ensure that parental consent to the particular circumstances giving rise to it is properly and thoroughly documented (para 150). Parents need to know what they are being asked to agree to where their child’s liberty is at stake.
In terms of assessing the ability of someone under 18 to make decisions, it is important to stress that most of the MCA 2005 (except DoLS, statutory wills, LPAs, and advance decisions to refuse treatment) applies to those aged 16 and over. Some of it even applies to under 16s (criminal offences and financial deputyship). But, it is suggested, Parliament clearly intended that, at least insofar as those with mental impairments are concerned, the statutory capacity test ought to be used from the age of 16.
The capacity of those under 16 to make decisions is gauged by Gillick although, as recently seen in Re S  EWHC 2729 (Fam) (discussed in the Wider Context section of this Report), the courts are sensibly fleshing out that common law test with the more comprehensive approach of the MCA where appropriate. But, in our view, the MCA does not completely oust Gillick at 16. There will be situations where a 16- or 17-year old does not have an impairment of the mind or brain but lacks the maturity or intelligence to make the decision. In that situation, it is suggested, there is a continued role for Gillick capacity. And, of course, even an under 18-year-old with MCA- and Gillick-capacity can lawfully have their decision overridden by the courts (as in An NHS Foundation Hospital v P  EWHC 1650 (Fam)) as their views are important but not yet decisive until adulthood.
The judgment, and indeed Nielsen, recognises that parental rights are not unlimited. Would the situation be different, for example, if D was objecting to his confinement? In my view, it would. The (English) MHA Code of Practice (2015) at para 19.41 assists in determining the scope of parental responsibility by reference to, in summary, the following matters:
The more coercive the confinement needs to be, the more likely it is that the decision will fall outside the scope of parental responsibility in my opinion. For example, a compulsory admission to a psychiatric ward of an objecting incapacitated 16/17-year-old should not be attempted on the basis of parental consent. That would, it is suggested, be outside the scope and the young person would need Article 5 safeguards (of the MHA).
The judgment did not need to address the significant issue as to whether local authorities and parents can use shared parental responsibility to consent to confinement for those subject to interim or final care orders. But given the lack of dissent (at paras 109-110) on the issue, it is suggested that the prudent course is to assume that the law is unchanged. So there can be no valid consent where someone under a care order is confined according to the nuanced acid test. Local authorities involved in care proceedings may therefore want to continue to have cases listed before judges who can also exercise powers under the inherent jurisdiction so as to deal with deprivation of liberty authorisations.
There are a few other tangential but significant matters to be found in the judgment. Resource arguments cannot render nugatory the substantive and procedural protections of Article 5 (para 14). The court also, no doubt sensibly, avoided the international curve ball as to how Article 14(1)(b) of the UNCRPD – which prohibits detention on the grounds of disability – could be squared with Article 5(1)(e) ECHR (para 140). Finally, and with “weary resignation”, the President observed (footnote 3) that the order in the court below was headed “In the High Court of Justice Court of Protection” and (noting that the responsibility for this appeared to lie with the court not the parties) said, ‘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.”
 Note, this summary and comment is prepared by Neil Allen, Alex and Tor both being instructed in the case.