Mental Capacity Case

Birmingham City Council v D and W

Keehan J


This is the sequel to Trust A v X and A Local Authority [2015] EWHC 922 (Fam), summarised here. In the first instalment, a 15-year-old boy – who had been diagnosed with ADHD, mild learning disability, Asperger's syndrome and Tourette's syndrome – was under continuous supervision and control and not free to leave a psychiatric unit. But his parents were held to be able to consent on his behalf so he was not deprived of liberty for the purposes of Article 5 ECHR. This was an appropriate exercise of parental responsibility.

Discharged from hospital and having turned 16, D now resides at a residential unit, funded by the local authority, with his parent's consent under s20 of the Children Act 1989. The main issues before the court:

  1. Whether his parents were still able to consent on his behalf;
  2. Whether the arrangements were imputable to the State.
All parties agreed that the Supreme Court's nuanced acid test was met. The placement is set within its own grounds, with a main house and 12 self-contained residential units, each with its own fenced garden. D resides in one of them, House A, with three other young people of a similar age. The educational facility he attends is on site, where he is taught in a class with 4 other young people. The following circumstances therefore amounted to continuous supervision and control, with a lack of freedom to leave:

"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 8:45am to 2pm. 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 5 hours. Currently his parents have been visiting for 3 hours as D does get increasingly anxious during this time. There have been no significant issues since D's move to Placement B."

Valid (parental) consent?

Despite the Official Solicitor's attempts to persuade him to reverse himself, Keehan J remained of the view that, whilst D was under 16, his parents could consent to his hospital confinement if that was an appropriate exercise of parental responsibility. Crucially, it was held that the assertion of Thorpe LJ in RK v BCC and Others that 'a parent may not lawfully obtain or authorise the deprivation of liberty of a child' was unsupported by authority. In particular, it was not supported by Nielsen (which should be confined to its facts) nor in any other ECtHR, or binding or relevant domestic, decision. What was an appropriate exercise of parental responsibility would be influenced by D's conditions:

"109. Thus, D's diagnosed conditions, were a very material factor in determining which decisions fall within the zone or scope of parental responsibility. D's limited ability to make decisions on his own behalf was a material factor in determining the scope or zone of parental responsibility. 

  1. On the facts of Trust A v X, especially the loving and caring relationships that his parents had with him and the close working relationship they enjoyed with D's medical and other professions, I considered their decision to consent to D's confinement in Hospital to be a proper exercise of parental responsibility. To have held otherwise would, in my judgment, have resulted in unwarranted and unnecessary state interference in D's and his parents' family life." (emphasis added)
However, once D turned 16, all things changed. For his parents could not consent on his behalf. Parliament had chosen to distinguish the legal status of those (a) under 16, (b) aged 16 and 17, and (c) adults (para 64 and 103). For example, incapacitous 16 and 17 year olds are within the remit of the MCA but an incapacitous person under 16 is generally excluded:

"105. In the premises, and whilst acknowledging that parents still have parental responsibility for their 16 and 17 year old children, I accept that the various international conventions and statutory provisions referred to, the UNCRC and the Human Rights Act 1998, recognise the need for a greater degree of respect for the autonomy of all young people but most especially for those who have attained the age of 16 and 17 years. Accordingly, I have come to the clear conclusion that however close the parents are to their child and however cooperative they are with treating clinicians, the parent of a 16 or 17 year old young person may not consent to their confinement which, absent a valid consent, would amount to a deprivation of that young person's liberty.

  1. I am satisfied that young people of 16 or 17 years are entitled to the full protection of their Article 5(1) rights irrespective of their capacity to consent to their treatment or their living arrangements."
State responsibility?

The local authority contended that the effect of the parents' consent under s20 of the Children Act 1989 meant that D's placement and confinement were not imputable to the state. This was rejected by the court:

"131… this local authority identified the unit, assessed D's needs and care regime, approved the package of care proposed by the unit and the regime under which D would reside there and the fact that it pays all the costs of his placement and education at the unit.

  1. In no sense at all could this set of circumstances be considered a purely private arrangement with no state involvement. The role of the local authority in establishing and maintaining D's placement is central and pivotal."
In the alternative, if the confinement was purely private, the State was indirectly responsible for it because the local authority's positive Article 5 obligations were engaged. It had to make an application to the court to determine whether D was deprived of his liberty and if so, to obtain authorisation for its continuance.

The altar of resources

The local authority stressed that the outcome of this decision had significant resource implications for this and all local authorities nationally. But the argument was rejected:

"137. The issue of the resource implications is a matter for the local authority and, ultimately, the Government; it is not, should not and, in my judgment, cannot be a relevant consideration for this court.

  1. The protection of the human rights of those with disabilities or the vulnerable members of our society, most especially in respect of the protection afforded by Article 5 (1), is too important and fundamental to be sacrificed on the altar of resources."

To summarise the current state of the law:

  1. Adults who are confined and lack capacity require Article 5 safeguards;
  2. For 16 and 17 year olds who are confined and lack capacity (or do have capacity and refuse), those with parental responsibility cannot give valid consent: Article 5 safeguards are required;
  3. For those under the age of 16 who are confined and lack capacity (or refuse to give it), parents can give valid consent if that is an appropriate exercise of parental responsibility;
  4. For all those under 18 under an interim or final care order who are confined and lack capacity, Article 5 safeguards are required (following A Local Authority v D and others [2015] EWHC 3125 (Fam)).
As a matter of legal principle, the fact that consenting to the confinement of someone who is 15-years-and-364-days-old can be within the scope of parental responsibility but a day later it cannot, may seem artificial. But Parliament has conferred a different legal status on the latter. So too, however, has Parliament decided that parental responsibility extends up to the age of 18. And it is instructive to note that parental responsibility pursuant to a care order cannot provide valid consent to confinement at any age. Moreover, even for those under 16 who are not under care orders, an inappropriate exercise of parental responsibility will not provide valid consent to confinement.  But perhaps the 16th birthday aims to strike a fair balance between Articles 5 and 8. For the lower the threshold for Article 5, the greater the interference there will be with Article 8.

This exposure of the Teen Bournewood Gap will present similar challenges to children and transition services and guardians as that currently being felt by adult services. Where care orders or parental responsibility do not cover a child's or young person's confinement, separate legal proceedings will be required to authorise the resulting deprivation of liberty. The Court of Protection is feeling its way with Re X and COPDOL10 for those aged 16 and over. The inherent jurisdiction is likely to experience a similar fate as it strives to determine an Article 5 compliant procedure for those under 16.

[1] Alex remaining instructed on behalf of D, and in line with standard policy, he has not contributed to this Note.