In the matter of D (a child) 
Keywords: Deprivation of liberty, mental capacity, consent, children
The pendulum has swung back again on the law surrounding deprivation of liberty for 16 and 17 year olds. The Court of Appeal has reversed the judgment of Keehan J, holding that parents can authorise the deprivation of liberty of 16 and 17 year olds.
The case concerned D who was born in April 1999 and had ASD, ADHD, Tourette’s and significant behavioural difficulties. D was being cared for in a situation in which he was subject to continuous supervision and control (thus meeting the Cheshire West acid test as being deprived of his liberty). D had been assessed by his treating consultant as lacking capacity to consent to his residence or care arrangements or to any deprivation of liberty.
In a series of judgements, Keenhan J considered D’s situation through his residence in a series of specialist residential placements under s.20 arrangements with the local authority and with the full approval and consent of his parents. He held that parents can consent (benignly and in the interests of the child) to the confinement of a child under 16 in circumstances which would otherwise amount to a deprivation of liberty, but that parental consent was insufficient to lawfully authorise the confinement of 16 and 17 year olds.
Munby LJ held that, where a child of 16-17 cannot make the relevant decision for themselves, the consent of someone with parental responsibility is sufficient to mean there is no DoL that needs authorisation, even if the other elements (the acid test and imputability to the state) are met. Essentially that the parents of a 16 or 17 year old can give substituted consent on their behalf if they lack the capacity to consent themselves.
Munby LJ was at pains to reject the local authority’s argument about the consequences to public resources of decisions around Deprivation of Liberty, stressing the importance of both the substantive and procedural requirements of Article 5 in protecting fundamental rights.
There were 3 grounds of appeal:
(1) That it was wrong to say that a parent cannot consent to arrangements which would otherwise amount to a deprivation of liberty for a child who has attained the age of 16;
(2) That it was wrong to say that the arrangements for D were attributable to the state;
(3) That D’s Article 5 rights were already sufficiently protected by the monitoring requirements of s.20 Children Act.
Addressing ground (2) the issue of state imputability, Munby LJ, had little difficulty rejecting the appeal on that ground and agreeing with Keehan J that the involvement of the state was comfortably of a degree which, at least, triggered the positive obligation to uphold Article 5.
He also concluded with little difficulty that the monitoring arrangements provided under s.20 Children Act (Regular Looked After Child Reviews chaired by an Independent Reviewing Officer) were insufficient to satisfy the requirements of Article 5 and rejected ground (3).
The bulk of the judgement focussed on ground (1) i.e. the issue of whether a parent can provide valid consent to confinement in conditions which would otherwise constitute a deprivation of liberty on behalf of a child of 16 or 17.
Munby LJ began his analysis by considering the situation of a typical young child living with their parents in a private home, reasoning that the child was under complete supervision and control and not free to leave (thus satisfying the Cheshire West “acid test”) but also accepting that the child was not deprived of his or her liberty within the meaning of Article 5. Recognising that, in those circumstances, Article 5 would not be triggered because the state was not involved, he proceeded to consider a hypothetical child living with local authority approved foster-parents in circumstances where (for whatever reason) the child’s own parents could not or had not consented to the placement. In those circumstances, he argued, the state would be involved but the parents had not consented and the foster carers lacked the authority to consent. Did it follow that the child was therefore within the meaning of Article 5 deprived of his or her liberty, and, if not, why not?
[It is rather difficult to seek how the hypothetical foster child is truly a helpful basis for reasoning, since the judgement does not mention the independent judicial scrutiny provided in the process of seeking a Care Order in order for a child to be placed with foster parents without the consent of a parental responsibility holder.]
Munby LJ found that Nielsen v Denmark (1988) 11 EHRR 175 (which concerned a 12-year-old child) provides that there are circumstances in which the consent by a "holder of parental authority" – in domestic terms, someone with parental responsibility – will provide a valid consent to confinement in circumstances which would otherwise constitute a deprivation of liberty. Those circumstances, although "extensive", are not "unlimited.", but he saw them as circumscribed by two factors: (a) whether the parent was motivated by the child’s welfare and (b) whether the child had ‘Gillick’ competence to consent on their own behalf.
Applying this reasoning to the facts, Munby LJ allowed the appeal on ground (1), concluding that D was not Deprived of his Liberty within the meaning of Article 5 because D’s parents were clearly motivated by his welfare and D did not have Gillick competence to consent on his own behalf.
In terms of practicality this judgment will undoubtedly be a great relief to many local authorities.
The position it creates is one where, for decisions regarding an illness and some form of protective treatment:
- Under 16: a parent can consent, regardless of capacity and regardless of views of the child.
- An under 16 year old Gillick competent child can ALSO consent. Or refuse, but parent can consent over the top of him or her.
- Over 16 and has Gillick competence: child can consent. Parent cannot intervene to refuse.
- Over 16 and lacking Gillick competence parent can consent using PR.
The question which remains somewhat unclear is how and when the MCA may also apply with regard to 16 and 17 year olds.
The Court of Protection could, presumably, be called upon to rule on whether a 16 or 17 year old has Gillick competence to consent. It would also be reasonable to conclude that the court would have a best interests role above that of the parents’ consent in cases where a young person thought not to be competent was determinedly expressing disagreement with a parental decision (either to consent or to refuse) – and, in the case of a child refusing care or treatment, the MHA would in any case provide a more appropriate framework for compulsory detention.
What is less clear, however, is the exact relationship between decisions made under the MCA (i.e. through a best interests process), in which the parents would be merely best interests consultees, and decisions made by parents on behalf of a 16 or 17 year old young person lacking capacity – particularly where that young person may not be able to express (or even form) their own view.
The profound difficulty with this judgement is that, essentially, it is founded on the retreat of parental authority at the pace of the child’s development of capacity to consent on their own behalf i.e. the concept of Gillick capacity. Beyond the age of 16, this sits very uneasily indeed with the Mental Capacity Act. The MCA applies from age 16 upwards. So how is this apparent conflict to be resolved?
Munby LJ’s judgement does engage with the issue of the MCA to some extent. He points to the a lack of specific provision in relation to those aged 16 or 17 in the MCA (presumably a reference to the applicability of DOLS only to those 18+) and the fact that the MCA makes no statutory provision for the role of those exercising parental responsibility. So, if the MCA alone governed the issue for 16 and 17 year olds, parents would have no status beyond that of being (along with others) Best Interests consultees. From this, he draws the conclusion that the intent of the MCA was to leave the matter to the common law i.e. the Gillick principles. (para. 127)
In para. 125, Munby LJ unpicks what he sees as the wrong assumptions underpinning the original judgement (of Keehan J) and identifies these as:
- his approach does not give effect to the fundamental principle established by Gillick: namely that, in this context (see paragraphs 79-85 above), the exercise of parental responsibility comes to an end not on the attaining of some fixed age but on attaining 'Gillick capacity'.
- because none of the statutory provisions upon which he relied bears either expressly or by implication upon the matter in hand which, to emphasise the obvious, is to do with the ambit and extent of parental responsibility and nothing else.
He concludes that these are errors because they would imply that “one is no longer, in the case of the 16-year old, within the scope or zone of parental responsibility” (para. 134). With due respect to Munby LJ, I am not convinced that this is so. The acknowledgement of some degree of differentiation accorded to 16 and 17 year olds by the MCA (and a range of other legislation and international conventions) does not imply that parents have no “parental responsibility” for 16 and 17 years, rather those legislative provisions acknowledge the reality that parents have limited parental authority over 16 and 17 year olds by reason of their proximity to attaining full majority at 18.
It is to my mind not irrelevant to note that the facts of the original Gillick case concerned the capacity to consent of, specifically, children under the age of 16 to contraceptive or abortion advice or treatment. The age of 16 in that case being crucially relevant as the age of consent to sexual activity and, as such, assuming that typically developing 16 year olds will have developed capacity to consent to sexual activity and, further, developed the capacity to consent to medical treatment and advice around it. So, the original principle established by Gillick dealt with the speed and age at which a child’s own consent or refusal could override that of the parent at ages less than the age of 16. Throughout the Gillick judgement it was clear that from age 16 up, young adults were presumed have capacity to make their own decisions around sexual activity and medical treatment related to it.
Even more importantly, the principle underpinning Gillick and quoted in Munby LJ’s judgement was as follows:
"It is, in my view, contrary to the ordinary experience of mankind, at least in Western Europe in the present century, to say that a child or a young person remains in fact under the complete control of his parents until he attains the definite age of majority, now 18 in the United Kingdom, and that on attaining that age he suddenly acquires independence. In practice most wise parents relax their control gradually as the child develops and encourage him or her to become increasingly independent.” (Lord Fraser of Tullybelton at pages 171-172)
The whole point of Lord Fraser’s argument was that it was not wise for parents to exercise ‘complete control’ over older children in order to prevent a sudden transition to full independence at age 18 and that this control should be relaxed as the child developed. In my view, it is clearly relevant whether the child/young person is actually on such a trajectory or not (as a result of their disability). It is one thing for parents to exercise gradually diminishing control over a child to support their development and quite another to maintain complete control over a child at a point very close to adulthood precisely because they may never or only at an age beyond 18 develop the capacity to take their own decision at all by reason of a disability.
Munby LJ refutes arguments of discrimination essentially on the grounds that all children under 18 lack full majority and that parents retain some parental responsibility right up until the age of 18. This is, of course, true. However, what is not dealt with explicitly is the reality that a far higher proportion of disabled children will attain maturity and competence at a later age (or never) than is the case for non-disabled children. If that difference is dealt with simply by contending that parents must retain the power to take decisions for their children until they develop the maturity and skills to do so for themselves, then it is difficult to see how that can possibly not result in disabled children being treated as ‘younger’ than non-disabled peers of the same age – a form of paternalism now widely recognised as discriminatory.
It is to be hoped that the Supreme Court will have the opportunity to consider the matter further.
Full judgement: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1695.html