D (A Child)

The Court of Appeal considered whether the placement and regime for a 16‑year‑old with autism and related disabilities amounted to a "deprivation of liberty" for the purposes of Article 5 ECHR and, if so, whether parental consent could render that confinement lawful. The court applied the three‑part Storck framework (confinement; lack of valid consent; imputability to the state) as explained in Cheshire West, and analysed the domestic law on parental responsibility, notably the principles in Gillick and the common‑law "bundle of powers" concept derived from Hewer v Bryant. The court held that Keehan J was wrong to treat attainment of age 16 as an absolute bar to a parent's being able to consent to arrangements which would otherwise amount to a deprivation of liberty: capacity rather than chronological age determines the ambit of parental consent (Gillick principles apply). The court nonetheless dismissed grounds alleging that D’s placement was not attributable to the state and that existing looked‑after‑children safeguards were adequate substitutes for court authorisation, holding that state involvement and the need for independent judicial safeguards may still arise.

This is an appeal from an order of Keehan J in the Court of Protection ([2016] EWCOP 8) concerning D, born 23 April 1999, who had diagnoses including ADHD, Asperger’s syndrome and Tourette’s and was found to have a mild learning disability. The facts were that D had been accommodated first at Hospital B and later (after his sixteenth birthday) at Placement B under arrangements involving the local authority. The essential legal question was whether D’s circumstances amounted to a deprivation of liberty within Article 5 and, if so, whether parental consent or other safeguards made the detention lawful.

The issues before the Court of Appeal were:

• Whether a parent can validly consent to arrangements for a child who has attained 16 years of age which would otherwise amount to a deprivation of liberty (Storck limb (b));
• whether the placement and restrictions were imputable to the State (Storck limb (c)); and
• whether the ordinary statutory and looked‑after‑children monitoring framework obviated the need for court authorisation.

The court reviewed the Strasbourg framework (Storck) and the Supreme Court’s Cheshire West formulation of the "acid test" for confinement. It undertook a detailed survey of domestic law on parental responsibility, drawing on Hewer v Bryant, the Family Law Reform Act 1969, Gillick and subsequent cases. The panel emphasised that Gillick capacity remains the relevant child‑specific test: parental rights are for the child’s benefit and yield as the child attains sufficient understanding and intelligence.

The court concluded that Keehan J was wrong to adopt a bright‑line rule that parental consent ceases to be effective simply because a child attains the age of 16. Whether parental consent can render confinement lawful depends on the child’s capacity and the exercise of parental responsibility in the child’s best interests (Gillick principles), not the mere fact of the child’s chronological age. Accordingly the appeal was allowed in part (ground (1) allowed). However, grounds (2) and (3) were dismissed: the court agreed that the placement could be attributable to the State in the circumstances of local authority placement and funding and that the ordinary looked‑after‑children procedures do not provide the independent judicial safeguards required under Article 5 where a deprivation of liberty is arguable.

The court’s practical approach was to reiterate that where there is objective confinement (Storck limb (a)), the subjective question of valid consent is capacity‑based and fact‑specific; and where the State is responsible or has positive obligations it must provide (or seek court authorisation for) appropriate safeguards.

Appeal allowed in part. The Court of Appeal held that Keehan J was wrong to treat attainment of age 16 as an absolute bar to parental consent to arrangements which would otherwise amount to a deprivation of liberty: whether parental consent is effective depends on the child’s capacity and the proper exercise of parental responsibility (applying Gillick principles). The court upheld Keehan J’s conclusions that the placement could be imputable to the state and that ordinary looked‑after‑children review procedures do not displace the Article 5 requirement for independent judicial safeguards where a deprivation of liberty is in issue, and accordingly dismissed grounds (2) and (3).

Appeal from an order of Keehan J sitting in the Court of Protection dated 15 March 2016 (Birmingham City Council v D [2016] EWCOP 8). Permission to appeal granted by McFarlane LJ on 14 June 2016. The Court of Appeal heard the appeal (8–9 February 2017) and delivered judgment 31 October 2017 ([2017] EWCA Civ 1695).