D (A Child) [2017] EWCA Civ 1695

​​Appeal against a decision involving the deprivation of liberty of a 16 year old boy. The appeal was allowed on one ground.

The Patient D is 16 years old and has suffered from Attention Deficit Hyperactivity Disorder (ADHD), Asperger's syndrome and Tourette's syndrome from a very early age. On admission to Hospital B he was further diagnosed as suffering from a mild learning disability. D's parents struggled for many years to care for him in the family home. He had significant difficulties with social interactions. His behaviour was challenging; he was observed to be physically and verbally aggressive. He would urinate and defecate in inappropriate places. He presented with anxiety and paranoid behaviours. His prescribed medication had limited effects. The circumstances in which D currently resides and is educated constitute an objective confinement which satisfies Limb One of Storck v Germany [2006] 43 EHRR 6 in determining whether D is deprived of his liberty. [The 3 limbs are (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state.]
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The grounds of appeal against Keehan J's judgment in 2016 were that he:

1. had erred in law in finding that a parent cannot consent to arrangements for a child who has attained the age of 16 which would otherwise amount to a deprivation of liberty;
2. had erred in law in finding that the arrangements for D were attributable to the state;
3. was wrong to find that D was deprived of his liberty "having regard to the procedures which ensure that the arrangements for 16 and 17 year old children, including those who lack capacity, are appropriately monitored."

The appeal was allowed on the first ground only. The President rejected Keehan J's decision that a parent cannot consent to arrangements for a child who has attained the age of 16 which would otherwise amount to a deprivation of liberty, saying that parental responsibility is, in principle, exercisable in relation to a 16- or 17-year old child who, for whatever reason, lacks 'Gillick capacity'.

Read the full text of the judgment on Bailii