Deprivation of liberty and the young person

 In Comment

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

Judge Keehan had to determine whether parents can give substituted consent for a child aged 16 or 17 to be confined in a residential placement, as the consequences of such confinement without valid consent would constitute a deprivation of liberty. This matter was first heard before Judge Keehan on the 31st March 2015 in Trust A v X and A Local Authority [2015] EWHC 992 (Fam) when D was 15 years old and Judge Keehan ruled that D’s parents could consent to his confinement on his behalf under section 20 of the Children’s Act 1989 (‘ s. 20 CA 1989’), so he was not deprived of his liberty.

The factsCase Summary from LawSkills | Private Client specialist trainers

D was initially diagnosed with Attention Deficit Hyperactivity Disorder, Tourette’s Syndrome and Asperger’s Syndrome from an early age. In October 2013 he was also found to have a mild learning disability. D’s behaviour was very challenging and he was not only verbally and physically aggressive, he would urinate and defecate in inappropriate places. D’s parents really struggled with his behaviour and this adversely affected his younger brother R. D’s prescribed medication had limited effects.

In March 2012, D was referred to his local Child and Adolescent Mental Health Team (CAMHS) and his treating psychiatrist referred D to Hospital B for assessment and treatment. Hospital B provides mental health services for children and young people between the ages of 12 and 18 years.  D lived within the grounds of Hospital B and attended the on-site school full time. D’s family visited him regularly and he enjoyed visits home for up to six hours. D was under constant supervision. He was assessed not to be ‘Gillick’ competent to consent to his current residence or care arrangement or to any deprivation of liberty.

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In August 2014, D’s clinical team decided that D was fit to be discharged from Hospital B to move to a residential placement. On the 2nd June 2015, D moved to residential Placement B. D’s parents agreed to his move to Placement B pursuant to s.20 of the CA 1989 and understood that it was in D’s welfare best interests. As in Hospital B, D was under constant supervision and control. D had his own bedroom at Placement B, but all external doors were locked and D was not allowed to leave the premises unless he had a planned activity. D was not allowed unaccompanied access to the community and received one to one support. D was educated at Placement B and attended swimming lessons. He still had contact with his parents each Saturday for up to five hours and there had been no significant issues since D’s move to Placement B.

The law

The guidance in Storck v Germany [2005] 43 EHRR 6 (‘Storck’) on how to determine whether there has been a deprivation of liberty in a specific situation was considered. The Storck test identifies three necessary elements for deprivation of liberty:-

  • The objective element of a person’s confinement to a certain limited place for a not negligible length of time
  • The subjective element that the person has not validly consented to the confinement. A person may give valid consent only is he or she has capacity to do so
  • The confinement must be imputable to the State

On the 23rd April 2015 Birmingham City Council (‘the Applicant’) issued an application in the Court of Protection and conceded that the circumstances in which D resided and was educated constituted an objective confinement which satisfied Limb 1 of Storck in determining whether D was deprived of his liberty. The Applicant submitted that Limbs 2 and 3 were not satisfied and accordingly D was not deprived of his liberty. Its arguments were based on two grounds:-

  • D’s parents may consent to his confinement which might otherwise result in a deprivation of liberty, but because of their consent does not; and
  • D resides at his residential unit under the auspices of s.20 CA 1989 accommodation to which his parents agreed.

Therefore, his placement and confinement at the residential unit and his school are not imputable to the State but rather are at the request of, and with the consent of, his parents.

The Official Solicitor accepted and agreed that the circumstances of D’s confinement satisfied Limb 1 of Storck. The Official Solicitor submitted that

  • D’s parents cannot consent to his confinement now that he has attained the age of 16 years; and
  • That D is looked after by the Applicant Local Authority pursuant to s20, the circumstances of his confinement are plainly and clearly imputable to the State via the acts of the Applicant Local Authority. Moreover the Applicant Local Authority took the lead in identifying this establishment and devised and/or approved the regime by which D is cared for in the residential unit and school.

The Official Solicitor contended that

  • No parent in any circumstances may consent to the confinement of their child, whatever their age, in circumstances which absent a valid consent would amount to a deprivation of liberty; and
  • On that basis, Judge Keehan’s ruling in Trust A v X was wrong insofar as he held that D’s parents could consent to his confinement in Hospital B when he was under 16 years of age.

 The decision

Judge Keehan determined that he was not persuaded by the Official Solicitor’s submissions that his decision in Trust A v X was wrong. He stated that ‘having reconsidered the issues in light of the submissions I have read and heard in this case, I am fortified in the decision that I made’.

Judge Keehan ruled that parents cannot give consent to the confinement of a child who has attained the age of 16. Such consent falls outside the scope of parental responsibility.

He did not accept that the accommodation of a young person pursuant to s.20 CA 1989 could never amount to a deprivation of liberty. He ruled that by consenting to D being accommodated by the Local Authority pursuant to s.20 CA 1989, his parents could not and were not consenting, explicitly still less implicitly, to his confinement at his residential unit.

Judge Keehan determined that the Local Authority was intimately involved in D’s placement at and confinement within the residential unit. Accordingly, he determined that D’s confinement ‘is and was imputable to the state, thus satisfying the third limb of Storck’.

Judge Keehan accepted that a Public Body, as an organ of the State, is under a positive obligation to protect the rights accorded by Article 5 (1) and that the Local Authority is obliged to protect D’s Article 5 (1) rights. This obligation required the Local Authority to apply to the Court to determine i) whether D is deprived of his liberty and ii) so, to seek authorisation for its continuance.

Judge Keehan also pointed out that the protection of D’s Article 5 (1) rights must not and, in his judgement, cannot be overridden by – as contended by the Local Authority – consideration of the resource implications for state bodies including this Local Authority.

Practice points

Practitioners should note that the judgment has clarified the current legal position:-

  1. An individual who is aged 18 or below who is subject to an interim or final care order and is confined has Article 5 safeguards
  2. Anyone who has parental consent cannot give valid consent for someone aged 16 or 17, who lacks capacity and is confined but has Article 5 safeguards
  3. Parents can give valid consent if they have parental responsibility for anyone aged 15 or below and who is confined

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