In the matter of D (A Child)

A 16 or 17-year-old child who lacks capacity is deprived of liberty under article 5 where the child is continuously supervised and controlled, is not free to leave, and is subject to restrictions exceeding those normal for a child of the same age. Disability, benign motives, best interests and the domestic character of the placement do not alter that conclusion.

Parental consent cannot substitute for the child’s consent or authorise the state to impose such confinement. The deprivation must therefore satisfy article 5’s substantive and procedural safeguards. The decision concerns living arrangements for 16 and 17-year-olds; the position of younger children and other exercises of parental responsibility remains open.

D was a 16-year-old with autism, attention deficit hyperactivity disorder, Tourette’s syndrome and a mild learning disability. He lacked capacity to decide where he should live. His residential placements involved locked doors, continuous supervision and control, and no freedom to leave unaccompanied. His parents agreed to arrangements which all concerned considered to be in his best interests.

The Court of Protection held in Birmingham City Council v D [2016] EWCOP 8 that D’s parents could not consent to his confinement after he reached 16. The Court of Appeal allowed the council’s appeal in [2017] EWCA Civ 1695, holding that parental responsibility continued until D acquired sufficient decision-making capacity.

The central issue before the Supreme Court was whether parental responsibility could authorise living arrangements for an incapacitous 16 or 17-year-old which would otherwise constitute a deprivation of liberty under article 5 of the European Convention on Human Rights.

By a majority of three to two, the appeal was allowed.

1. Lady Hale, with whose conclusion on article 5 Lady Black and Lady Arden agreed, applied the three components identified in Storck v Germany (2005) 43 EHRR 6: objective confinement for a non-negligible period, absence of valid consent, and attribution of responsibility to the state.

2. A child’s confinement must be assessed by comparison with a child of the same age who does not have the relevant disability. D was continuously supervised and controlled, was not free to leave and experienced restrictions which were not normal for a 16 or 17-year-old. His disability, the benign purpose of the arrangements and their compatibility with his best interests did not prevent objective confinement. The reasoning in Surrey County Council v P; Cheshire West and Chester Council v P [2014] UKSC 19 was applied.

3. The parents’ agreement could not supply the subjective consent required by article 5. Strasbourg authority did not establish a general doctrine of substituted consent. Nielsen v Denmark was explained as turning upon the comparative normality of the restrictions imposed upon a 12-year-old and therefore did not govern D’s materially different circumstances.

4. The confinement was attributable to the state. The local authority had organised and funded the arrangements and had statutory responsibilities towards D under the Children Act 1989. Article 5 also imposes a positive obligation on the state to protect individuals against deprivation of liberty by private persons.

5. Parental responsibility could not license the state to interfere with a child’s fundamental right to liberty. D’s placements therefore constituted a deprivation of liberty and the procedural safeguards in article 5 applied. No actual violation occurred because both placements had been authorised judicially and were accepted to be in D’s best interests.

6. Lady Black additionally concluded that, at common law, parental responsibility for a 16 or 17-year-old did not extend to authorising confinement amounting to a deprivation of liberty. Lady Hale considered it unnecessary to decide that independent common-law question, while Lady Arden expressed no view upon it.

7. On section 25 of the Children Act 1989, the court gave provisional guidance that “secure accommodation” should receive a restrained construction focused principally on the nature and purpose of the accommodation, not merely the restrictions in an individual care regime. No definitive ruling was made because the issue had arisen only after the hearing and the necessary facts had not been found.

8. Lord Carnwath, with whom Lord Lloyd-Jones agreed, dissented. They would have held that responsible parental consent, exercised in good faith and in the child’s best interests, remained effective until the child acquired sufficient decision-making capacity.

The parties were invited to make submissions on the terms of the declaration.

1. United Kingdom Supreme Court: In In the matter of D (A Child) [2019] UKSC 42, the court allowed D’s appeal by a majority of three to two and reversed the Court of Appeal’s conclusion that parental consent prevented the arrangements from constituting a deprivation of liberty.
2. Court of Appeal: In [2017] EWCA Civ 1695, the court allowed Birmingham City Council’s appeal. It held that parental responsibility could authorise the confinement of a 16 or 17-year-old who had not acquired sufficient decision-making capacity.
3. Court of Protection: In Birmingham City Council v D [2016] EWCOP 8, the court held that D’s parents could no longer consent to his confinement after he reached 16 and that the deprivation of liberty was attributable to the state.
4. Family Division: In In re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam), the court held that D’s hospital conditions amounted to confinement but that, while he was 15, his parents could consent within the scope of parental responsibility.