D (A Child)

Article 5 requires all three Storck components: confinement, lack of valid consent and State responsibility. For children, parental responsibility may provide valid consent to confinement where the decision falls within the parental responsibility zone. That zone is governed by domestic law and is not ended automatically when a child reaches 16. Gillick capacity remains child-specific and depends on the child’s understanding and intelligence in the particular context.

Parental involvement does not prevent State responsibility where a local authority has centrally arranged, funded and maintained the placement. Consent to accommodation under section 20 of the Children Act 1989 does not automatically amount to consent to every particular confinement. The question is fact-sensitive.

This was an appeal by Birmingham City Council against Keehan J’s decision in the Court of Protection, reported at [2016] EWCOP 8. D, a 16-year-old with significant developmental and behavioural difficulties, lived and attended school in a placement involving constant supervision, locked doors and restrictions on leaving.

The local authority argued that D’s parents could consent to the arrangements, that the confinement was not attributable to the State, and that existing monitoring arrangements supplied sufficient safeguards. Keehan J rejected those arguments and authorised the deprivation of liberty under the Mental Capacity Act 2005. The central issues concerned parental consent, State imputability and the effect of existing care-review procedures under Article 5.

1. Disposition. The appeal was allowed on ground (1), concerning parental consent, and dismissed on grounds (2) and (3), concerning State imputability and existing monitoring procedures.
2. Article 5 applies the three-component analysis derived from Storck and confirmed in Cheshire West: objective confinement, absence of valid consent and attribution to the State. The parties accepted that D was confined for the objective component.
3. Under Nielsen v Denmark (1988) 11 EHRR 175, a holder of parental responsibility may, in appropriate circumstances, give valid consent to a child’s confinement. The scope of that authority is extensive but not unlimited. English law determines its ambit. Section 3 of the Children Act 1989 directs attention to the common law, including the principles in Hewer v Bryant and Gillick.
4. Parental responsibility exists for the child’s benefit and is subject to judicial control. Gillick rejected a fixed age of discretion. Capacity is child-specific and depends on the particular child’s understanding and intelligence. Accordingly, parental responsibility may in principle be exercised for a 16- or 17-year-old who lacks Gillick capacity. Age-based statutory provisions concerning medical treatment, accommodation and the Mental Capacity Act 2005 do not create a contrary bright line.
5. The proper zone of parental responsibility is fact-sensitive. Relevant matters include the child’s age, maturity, understanding, individual disabilities and needs, the nature of the restrictions, contemporary community standards, and the parents’ conduct, involvement and reliance on professional advice. There is no discrimination where parents act within that lawful zone.
6. D’s parents’ involvement did not prevent State responsibility. The local authority identified and assessed the placement, approved the care regime, funded the placement and education, and played a central role in maintaining it. Parental consent for the purposes of the second Storck component is not incompatible with State involvement under the third component.
7. Existing social-work reviews, independent reviewing officer procedures and care-planning arrangements cannot replace the judicial safeguards required by Article 5 where there is State-attributable confinement without effective consent. Resource implications are irrelevant to the human-rights question. Consent under section 20 of the Children Act 1989 is not, by itself, consent to whatever particular confinement the local authority later selects; the scope of consent is a question of fact.
8. The court expressed no concluded view on substituted consent for an incapacitous adult. The President also made observations, not necessary to the appeal, about the possible application of the confinement component to very young children.

• Court of Appeal (Civil Division) allowed the appeal on ground (1) and dismissed it on grounds (2) and (3).
• Court of Protection, Keehan J, dismissed Birmingham City Council’s application and authorised D’s placement and deprivation of liberty under section 16 of the Mental Capacity Act 2005: [2016] EWCOP 8.