​Birmingham City Council v D v W [2016] EWCOP 8

This matter first came before Mr. Justice Keehan on 31 March 2015, when he gave Judgment in Trust A v X and A Local Authority [2015] EWHC 992 (Fam). It was decided then that D's parents could consent to his confinement and there was no deprivation of liberty (DOL) of D, who was then 15 years old.

When D turned 16 years old, Birmingham City Council ("the applicant") made an application for the court to determine:

(a)    Whether D was being deprived of his liberty in a residential placement; or
(b)    Whether D's voluntary accommodation pursuant to s.20 of the Children Act 1989 meant he could not be deprived of his liberty.

• The Official Solicitor accepted and agreed that the circumstances of D’s confinement satisfied Limb 1 of Storck. He submitted, however, that:
• D’s parents cannot consent to his confinement now that he has attained the age of 16 years; and
• The circumstances of his confinement are plainly and clearly imputable to the state via the acts of the applicant. The residential unit and the school D attends are paid for by the authority.
• The decision in Trust A v X was wrong insofar as it was held that D’s parents could consent to his confinement in Hospital when he was under 16 years of age (paras. 52-66 of that judgment)

The applicant relies on Trust A v X and submits there is clear authority that:

• a parent may in the exercise of their parental responsibility consent to the confinement of their child within the zone/scope of their parental responsibility;
• substituted consent may be given by an individual authorised to act on the parents behalf.

The Facts
D was diagnosed at an early age with Attention Deficit Hyperactivity Disorder, Asperger’s Syndrome and Tourette’s Syndrome. In October 2013, he was further diagnosed with a mild learning disability. D's parents struggled with his challenging behaviour which included physical and verbal aggression, urination and defecation in inappropriate places, anxiety and paranoia. The prescribed medication had limited effects and his brother was adversely affected by D's behaviour. 

By March 2012 he was referred by CAHMS to hospital. He lived and was educated on the grounds, where his family visited him regularly. Assessments showed that D was not 'Gillick' competent to consent to residence and care or to any DOL.

D moved to a residential placement on 2 June 2015. The parents recognised the placement was in D's welfare best interests and agreed to his placement pursuant to s.20 of the Children Act 1989. D was under constant supervision and control. He had his own bedroom. External doors were locked and he was not allowed to leave unless for a planned activity. He received one to one support. D had contact with his parents every Saturday for up to 5 hours and no significant issues had arisen since his move.

The applicant submitted that D, aged 16 years old, was not being deprived of his liberty because his placement and confinement, both at the residential unit and his school, were not imputable to the state but rather were at the request of, and with the consent of, his parents.

The Law
The court considered the Law Commission consultation paper on Mental Capacity and Deprivation of Liberty which expressed concerns about the current law, namely:

• There are unjustifiable inequalities amongst age groups and this potentially places young people at a distinct disadvantage compared to those over 18;
• Human rights asks for the need to give greater weight to the views of young people;
• Section 25 of the Children Act 1989 does not provide an adequate basis for dealing with 16 and 17 year olds who satisfy the "acid test";
• "Zone/Scope of parental control" remains a poorly understand and ill-defined concept.

The court considered principles drawn from various authorities, including, among others: Nielsen v Denmark [1988] 11 EHRR 175; A Local Authority v D and Ors [2015] EWHC 3125 (Fam) at paragraphs 26-29; Storck v Germany [2006] 43 EHRR 6; RK v BCC, YB and AK [2011] EWCA Civ 1305 and Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 4 All ER 627.

Neither Nielsen nor Re K are authority for the proposition that "a parent may not lawfully detain or authorise the deprivation of liberty of a child." There is no decision which directly deals with this issue.
Referring to Stonkov v Bulgaria [2015] 42 ECtHR 276, DD v Lithuania [2012] MHLR 209 and Atudorei v Romania [2014] ECtHR 947, the Official Solicitor made 2 key points:

• These are the only cases where the ECtHR alluded to the concept of substituted consent; and
• It is implicit that these cases considered the case of Nielsen v Denmark [1988] 11 EHRR 175 in terms of the objective First Limb of the 'Storck test' before then considering the subjective Second Limb of 'Storck'. In the latter context no reference was made to Nielsen.

Decision
The court agreed with the Official Solicitor that the applicant could not consent to arrangements for D that would otherwise amount to a DOL. However, the court was not persuaded that a parent can never consent on behalf of their child to a period of confinement which, absent a valid consent, would amount to a DOL. Mr. Justice Keehan was satisfied of his legal and factual analysis in that Trust A v X. He remains of the view that in appropriate circumstances a parent may give valid consent to the confinement of a child of 15 years and younger in what would otherwise amount to a DOL. When the young person in question is aged 16 or 17, as supported by Parliament, a parent may not give valid consent as this would fall outside the scope of parental responsibility.

When considering the Second Limb of the Storck test, namely the issue of consent, it would be wholly wrong not to recognise the special status accorded by Parliament to 16 and 17 year old people in D’s case. It would be inappropriate not to do so on the grounds that by reason of his disabilities he cannot consent.
The Judge was satisfied, precisely because of D's disabilities and vulnerability, that it is vital that D is accorded the same status as a 16 year old without any disabilities and to afford him the full protection of Article 5.

The court was not persuaded that the arguments accepted in Trust A v X in respect of a 15 year old should apply in equal force to a person of 16 or 17 years. It was highlighted that he agrees 16 and 17 year olds should be distinguished in their legal status, as recognised by Parliament. At para. 105 of his judgment, Mr. Justice Keehan held: 

"however close the parents are to their child and however cooperative they are with treating clinicians, the parent of a 16 or 17 year old young person may not consent to their confinement which, absent a valid consent, would amount to a deprivation of that young person's liberty."

Discussion
This judgment has clarified that current law establishes:

• Anyone aged 18 or below, who is subject to an interim or final care order, lacks capacity and has a DOL, enjoys Article 5 safeguards;
• Anyone who has parental responsibility cannot given valid consent for someone aged 16 or 17, who lacks capacity and has DOL. Therefore these young people enjoy Article 5 safeguards;
• Parents can give valid consent if they have parental responsibility for anyone aged 15 or below, who lacks capacity and has DOL.

In order to understand the factual and legal progression fully, this judgment should be read alongside judgment in Trust A v X and A Local Authority [2015] EWHC 922 (Fam).

Mr. Justice Keehan acknowledged he could and should have expressed himself more felicitously and precisely in Trust A v X using the words:

'I am wholly satisfied that D lives in conditions which satisfy the First Limb of the Storck test', rather than simply saying 'which amount to a DOL'.

This case is particularly useful as it provides a synopsis of the progression in case law and in particular helps practitioners to understand how courts have approached the case of Nielsen. The decision of the ECtHR in Nielsen is seen as a controversial decision (see Lord Neuberger in Cheshire West at paragraph 72). The court was of the view that the decision in Nielsen should be confined to its facts, as the judgment did not propose or endorse the principle of substituted consent in relation to a confinement which, absent a valid consent, would amount to a DOL. The case concerned a child and the scope or zone of parental responsibility.

D, in this case, needed authorisation for his DOL. Mr. Justice Keehan rejected any argument put forward by the applicant that due to limited resources the court should not decide as it did. Therefore he concluded it would be imprudent and unhelpful to  provide any general guidance on the issue of deprivation of a young person's liberty. Mr. Justice Keehan has quite rightly recognised and adopted the approach advocated by Parliament. Whilst this case may have quietened some dissatisfaction caused by Trust A v X and added some clarity, this decision may prove helpful in developing the law through any future case which involves a potential DOL of a 16 or 17 year old.

Read the full text of the judgment on Bailii