In the matter of D (A Child)
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:
- For under 18s who are confined and unable to consent, parents can give valid consent if that is an appropriate exercise of parental responsibility.
- Those of any age under an interim/final care order who are confined and unable to consent require Article 5 safeguards.
- Those under 18 who are able to make the relevant decision and object to their confinement will require Article 5 safeguards.
(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 objective component of confinement in a particular restricted place for a not negligible length of time;
- the subjective component of lack of valid consent; and
- the attribution of responsibility to the state.
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:
- … comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them…
- … It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.
- Without deciding a point which is not before us, I am inclined to think that the effect of this is that, in Lord Kerr's view, the situation of the "young" or "very young" as he describes it does not involve a "confinement" for the purposes of Storck component (a), even though such a child is living in circumstances which plainly satisfy the Cheshire West "acid test." If this is so, though it is not something we need to decide for the purpose of disposing of this appeal and I express no concluded view, then the consequence, going back to my question, would be that the child living with foster-carers in their home is therefore not within the meaning of Article 5 being deprived of his or her liberty.
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:
- Nielsenwas 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 (paras 26 and 37).
- 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) may provide valid consent to confinement (paras 37 and 95).
- For these purposes, the relevant rights of a person with parental authority are determined by reference to domestic law (para 50) which provides that parental responsibility is in principle exercisable in relation to a 16- or 17-year-old who "for, whatever reason, lacks 'Gillickcapacity'" (paras 84-85 and 128).
- There was no 'magic' in the age of 16, so none of the statutory provisions relied upon by Keehan J to identify a dividing line between those under 16 and those aged 16+ had a bearing on the ambit and extent of parental responsibility established by the common law (para 125). Nor did the international conventions put before the court (paras 136-140) or arguments based upon discrimination (paras 141-146).
- The "zone" of parental responsibility was to be ascertained by reference to general community standards in contemporary Britain, the standards of reasonable men and women. The question was whether the restrictions being imposed by the particular parent in the particular case fell "within ordinary acceptable parental restrictions upon the movements of a child" (para 84).
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:
- Is this a decision that a parent should reasonably be expected to make? Consider factors such as:
- The type and invasiveness of proposed intervention.
- The age, maturity and understanding of child or young person: parental role should diminish as the child develops greater independence.
- Does it accord with the child or young person's current wishes or will they resist?
- Have they expressed any previous views?
- Are there any factors undermining the validity of parental consent?
- Does the parent lack capacity to consent?
- Is the parent not able to focus on what is in their child or young person's best interests (eg due to an acrimonious divorce)?
- Is there significant distress/conflict between parents which means they are unable to decide what is best?
- Is there conflict between decisions of those with parental responsibility?
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.