D (A Child ; deprivation of liberty), Re

The test for deprivation of liberty applies to a person under 16. Constant supervision and control, together with an inability to leave freely, may satisfy its objective element. The person’s compliance, comfort and best interests do not alter that conclusion.

Parental consent may nevertheless prevent the arrangements from constituting a deprivation of liberty where the decision falls within the zone of parental responsibility. That question is fact-specific. Relevant matters include the child’s age, maturity, disabilities, welfare needs, clinical advice and the parents’ continuing involvement. The inherent jurisdiction may authorise a deprivation of liberty for a person under 16 where parental consent is unavailable or ineffective.

D was 15 and had autism, a mild learning disability and other conditions affecting his behaviour and decision-making. He had lived informally in a locked hospital unit for about 15 months. He was under constant supervision and control and could leave only when accompanied. His clinicians considered him incapable of consenting to the arrangements.

The hospital trust applied under the inherent jurisdiction for a declaration that D’s deprivation of liberty was lawful and in his best interests. The court had to decide whether the arrangements satisfied the objective element of the test in Cheshire West; whether D’s parents could consent to them through parental responsibility; and, if they could not, whether the court should authorise the deprivation of liberty.

1. The hospital arrangements would amount objectively to a deprivation of liberty. D was under constant supervision and control. His enjoyment of the placement, willingness to engage with staff, comfort and welfare benefits were irrelevant to that question. The approach in Cheshire West [2014] UKSC 19 applied to a person under 16, although the essential ratio of that case did not govern D’s circumstances. The meaning of deprivation of liberty was the same for people with and without disabilities.

2. The parents’ valid consent meant that the subjective element of deprivation of liberty was absent. Whether consent fell within the zone of parental responsibility required close examination of the child’s concrete circumstances. The appropriate exercise of parental responsibility varied with the child’s age, maturity and disabilities. Constant supervision of a non-disabled 15-year-old would ordinarily be inappropriate. For an autistic 15-year-old with erratic, challenging and potentially harmful behaviour, it could be necessary and proper.

3. D’s parents had acted on clinical advice, in his welfare best interests and on matters he could not decide. They maintained close involvement through visits, calls, home contact and care reviews. Their consent to the hospital placement and its restrictions therefore fell well within the zone of parental responsibility. The position might differ where parents acted against medical advice, abandoned the child or ceased to take an interest in the child’s life.

4. The Court of Appeal’s statement in RK v BCC [2011] EWCA Civ 1305 that a parent could not authorise a child’s deprivation of liberty was obiter and of doubtful correctness. The observations in Re K about parental authority were also obiter and arose in the distinct context of the draconian secure-accommodation jurisdiction.

5. The court may use its inherent jurisdiction to authorise the deprivation of liberty of a person under 16. No such authorisation was required here because the parents could consent. The court declined to give general guidance because each case required close examination of its particular circumstances.

On 17 December 2014, Holman J made an interim declaration that D’s deprivation of liberty was lawful and gave directions for the final hearing. No appellate history is stated.