In re D (A Child)

This appeal considered whether the consent of a parent can lawfully authorise living arrangements for a 16 or 17-year-old which, objectively, amount to a deprivation of liberty within the meaning of article 5 of the European Convention on Human Rights. The court applied the Storck/Cheshire West test (continuous supervision and control and not free to leave) for the objective element of deprivation of liberty and rejected the proposition that parental consent can substitute for the subjective element of lack of valid consent where the child lacks capacity.

The majority held that where restrictions on a young person aged 16–17 go beyond what is normal for that age, article 5 is engaged; such restrictions in D’s placements did amount to a deprivation of liberty; and parental consent does not negate the requirement in article 5 for appropriate safeguards. The court therefore concluded that parental responsibility does not extend to authorising a state-attributable deprivation of liberty of a 16 or 17-year-old who lacks capacity. The court also examined section 25 of the Children Act 1989 and concluded it should be read restrictively: the hallmark of "secure accommodation" is accommodation provided for the primary purpose of restricting liberty, not every regime that imposes restrictions.

Background and facts:

• D, born 23 April 1999, had neurodevelopmental disorders and a mild learning disability. He was admitted to a specialised unit and later transferred to residential placements (Placement B and C) where the external doors were locked, he was under continuous supervision and not free to leave. His parents agreed to the placements and he was accommodated under section 20 of the Children Act 1989.
• Procedural history: initial High Court (Family Division) hearings, a Court of Protection judgment (Keehan J), an appeal to the Court of Appeal ([2017] EWCA Civ 1695) which allowed the local authority, and then this permissioned appeal to the Supreme Court brought by the Official Solicitor acting for D.

Nature of the application: The Official Solicitor appealed, contending that parental consent cannot validly authorise the confinement of a 16 or 17-year-old who lacks capacity and that article 5 safeguards must therefore apply; alternatively, that parental decision-making should be governed by the Mental Capacity Act 2005 best-interests framework.

Issues framed:

• Whether parental responsibility may extend to consenting to arrangements for a 16–17-year-old that otherwise amount to a deprivation of liberty under article 5.
• What effect, if any, lack of mental capacity in the child has on that question.
• Whether it matters if parental responsibility is held by a public authority.
• Whether section 25 Children Act 1989 applies to living arrangements such as D’s.

Court’s reasoning and conclusion:

• The court applied the three Storck components as clarified by Cheshire West: (a) objective confinement; (b) lack of valid consent; and (c) attribution to the State. On the facts D’s placements satisfied (a) and (c.
• On limb (b) the majority rejected the view that parental consent can substitute for the child’s own consent where the child lacks capacity. Strasbourg authorities (including Storck, Stanev and earlier Nielsen) and domestic law were analysed; the court treated Nielsen as dependent on the normality and responsible exercise of parental authority in its facts but held there is no general principle of substituted consent to remove the protections of article 5 from incapacitous 16–17 year olds.
• The result was that the arrangements deprived D of his liberty for article 5 purposes and the procedural protections required by article 5 must be available. The court noted that the deprivation had been authorised in D’s case and found no violation of his rights, but held the legal principle in favour of safeguards.
• On section 25 Children Act 1989 the court took a restrictive construction: "secure accommodation" denotes accommodation provided primarily for the purpose of restricting liberty, not every setting where a child’s living arrangements give rise to restrictions.

The majority allowed the appeal and invited submissions on the form of a declaration; two members dissented and would have dismissed the appeal.

This is an appeal allowed by the majority. The Supreme Court held that parental consent cannot operate as a substitute for the subjective element of article 5 where a 16 or 17-year-old lacks capacity and the restrictions on that young person go beyond what is normal for their age; such arrangements, when attributable to the state, amount to a deprivation of liberty and require the procedural safeguards of article 5. The court read section 25 Children Act 1989 restrictively so that it applies to accommodation provided primarily for the purpose of restricting liberty.

Appeal to the Supreme Court from the Court of Appeal ([2017] EWCA Civ 1695). The factual and legal questions were considered earlier by Keehan J in the Family Division and in the Court of Protection: In re D (A Child) [2015] EWHC 922 (Fam) and Birmingham City Council v D (by his litigation friend, the Official Solicitor) [2016] EWCOP 8; the Court of Appeal gave its judgment at [2017] EWCA Civ 1695 before this appeal to the UK Supreme Court ([2019] UKSC 42).