D (A Child) [2019] UKSC 42

The issue in this appeal was whether it is within the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of article 5 of the European Convention of Human Rights (ECHR), in particular where the child lacks the mental capacity to make the decision for himself.

D has been diagnosed with attention deficit hyperactivity disorder, Asperger’s syndrome and Tourette’s syndrome, and has a mild learning disability. When he was 14 he was admitted to a hospital providing mental health services, for assessment and treatment where he lived in the hospital grounds, attended a school there, the external door was locked and was accompanied whenever he left the site. The hospital trust applied to the High Court for a declaration that it was lawful for the trust to deprive D of his liberty in this way, an application which was granted as. Keehan J found it was a proper exercise of parental responsibility to consent to his constant supervision and control while he was under 16.
 
However, D had been discharged, with his parents‘consent, to a residential placement but under similar constraints. Court of Protection proceedings were issued on D’s 16th birthday seeking a declaration that the consent of D’s parents meant that he was not deprived of his liberty at the placement which was refused by Keehan J as the MCA now applied but the Court of Appeal allowed the appeal by Birmingham City Council who found that the MCA had no bearing.
 
The Supreme Court narrowly allowed this appeal (3-2) broadly because D’s human rights were in play saying at [49] that there is no scope for the operation of parental responsibility to authorise what would otherwise be a violation of a fundamental human right of a child
 
Lady Black, in a supplemental judgment also held that that as a matter of common law, parental responsibility for a child of 16 or 17 does not extend to authorising a confinement of the child in circumstances amounting to a deprivation of liberty.
 
Lord Carnwarth, dissenting, agreed with the Court of Appeal that nothing in the MCA detracts from the common law principle of parental responsibility in respect of 16 and 17-year-olds and that the ECHR case law on article 5 recognises that the proper exercise of parental responsibility can include consent to confinement of a child such as D.
 
The full judgment and a press summary can be read on the Supreme Court website