Case Summary: In the matter of D (A Child) [2017] EWCA Civ 1695

Court of Protection case summary

03/11/2017

Hannah Taylor

Hannah Taylor

Senior Associate

 This case will be of interest because it changes the position in respect to deprivation of liberty for Young Persons (16 – 17 year olds).

Case

In the matter of D (A Child) [2017] EWCA Civ 1695 (Court of Appeal)

Relevant Topics

  • Deprivation of Liberty
  • Children
  • Young Persons
  • Consent from Parents
  • State Imputability

Practical Impact

Consent (meaning that the Subjective Element of a DoL is not met) can be provided from the following for a young person:

  • Young person if they have capacity in accordance with the MCA 2005;
  • Parent with Parental Responsibility if the young person lacks Gillick competence and it is within the Scope of Parental Responsibility for that young person and that

Scope of Parental Responsibility:

  • The rights, powers and duties associated with Parental Responsibility apply until a child or young person achieves Gillick competence;
  • One part of the objective element of the test for Scope of Parental Responsibility = whether the child or young person lacks Gillick competence;
  • Subjective element of the Scope of Parental Responsibility = whether it is a decision that falls within it for that particular child/young person and that particular parent.

Confirmed the previously understood position that:

  • A person with Parental Responsibility (not a Local Authority with Parental Responsibility) can consent to a confinement on behalf of a child (i.e. under 16 years of age) where it is within the Scope of Parental Responsibility – meaning that it is not a DoL because the Subjective Element is not met;
  • SoPR can be impacted by things like disabilities – N.B. distinction is drawn between determining whether circumstances amount to a DoL (which, post Cheshire West does not involve a relevant comparator test) and determining what falls within the SoPR (which in turn influences whether someone with PR can consent to mean Subjective Element of a DoL is not met);
  • Where a public body has identified the placement, assessed P's needs and care regime, approved the package of care and pays all the costs of the placement, it's role is central and pivotal and enough to create direct State imputability;
  • State is required to make arrangements for authorisation of a DoL either:
    • State is directly responsible for the confinement; or
    • State knows or ought to know of a private confinement;
  • Pressure on resources is not a justification for failing to uphold the protections in Article 5.

Changed the previously understood position to confirm that:

  • Because the rights, powers and duties of Parental Responsibility apply until a child or young person achieves Gillick competence, it is possible for a parent with Parental Responsibility to provide consent for a Gillick incompetent young person – as long as it is within the Scope of Parental Responsibility for that young person and that parent;
  • Gillick incompetence opens the door for a parent with Parental Responsibility to provide consent for a young person, as long as it is a decision with the Scope of Parental Responsibility for that young person and that parent.

Acknowledged but did not specifically uphold or overturn:

  • Local Authority with Parental Responsibility cannot consent to a DoL on behalf of child or young person;

Queried:

  • Very young children may not even meet the threshold for confinement (i.e. may not meet the Objective Elementt of a DoL) – N.B. this point was not determined fully but raised as a possibility.

Summary

 

Sir James Munby (President of the Court of Protection), Lord Justice Richards and Lord Justice Irwin sitting in the Court of Appeal ("CoA")

Hearing: 8-9 February 2017, Judgement: 31 October 2017 (56 pahe judgement).

This was the Appeal (launched by Birmingham City Council) from Mr Justice Keehan's earlier decisions about D:

  • Re D (A Child: Deprivation of Liberty) (2015) EWHC 922 (Fam)
  • Birmingham City Council v D and W [2016] EWCOP 8

CoA proposed the following terminology:

  • "Deprivation of Liberty" (DoL) = when all 3 elements (Objective, Subjective and State Imputability) are met, meaning there is a deprivation of liberty within the meaning of Article 5(1) triggering the obligations in Article5(2)-(4);
  • "confinement" = when Objective Element is met.

CoA raised the following point as a possibility – it did not decide the point finally either way:

  • Very young children have to have their liberty curtailed because of their youth and dependence on others;
  • This is a condition common to all children of a young age;
  • Therefore, they are not "confined" in order to meet the Objective Element of a DoL.

CoA acknowledged Mr Justice Keehan's decision (but did not confirm or overrule either way) that:

  • Local Authority with Parental Responsibility cannot consent to a confinement that would otherwise be a DoL for either a child or young person;

CoA confirmed Mr Justice Keehan's decision that:

  • Parent with Parental Responsibility can so consent for a child;
  • SoPR can be influenced by disabilities etc. so what might be within SoPR for a 15 year old without disabilities is different from what falls within it for a 15 year old with disabilities.

CoA overturned Mr Justice Keehan's decision that:

  • Parent with Parental Responsibility cannot so consent for a young person – in the context of a young person who lacks Gillick

A parent with Parental Responsibility can provide consent to a confinement that would otherwise be a DoL (thereby rendering the Subjective Element unmet and meaning it is not a DoL which requires regularisation) for a child or a young person lacking Gillick competence - if it is within the Scope of Parental Responsibility (which is dependent on that child/Young Person, that parent and the particular circumstances).

This is because:

  • European case law has confirmed that a person with Parental Responsibility can provide valid consent for the purpose of the Subjective Element of a DoL;
  • The scope of what rights Parental Responsibility consists of is something to be determined by domestic law;
  • Our domestic case law has confirmed that the concept of Parental Responsibility applies to 16 and 17 year olds who lack Gillick competence (noting the trend in case law, to recognise that as a child or young person gains Gillick competence, Parental Responsibility becomes more limited);
  • Legislation distinguishing YP from children is not directly applicable; and
  • The extent of SoPR is different from determining whether or not there is a DoL (where you cannot use relevant comparator).
Background

This appeal arises from Mr Justice Keehan's decision in Birmingham City Council v D and W [2016] EWCOP 8 (when D was 16 and in a residential community setting), which in turn followed his earlier decision in Re D (A Child: Deprivation of Liberty) (2015) EWHC 922 (Fam) (when D was 15 and in a hospital setting).

D is 16 years old suffering from ADHD, Asperger's, Tourette's and a mild Learning Disability. He has significant difficulties with social interactions and displays behaviour that challenges (physical and verbal aggression).

In October 2013, aged 14, he was admitted to a CAMHS hospital ("Hospital B") in circumstances which amounted to a confinement. He was assessed as being not Gillick competent.

On 31 March 2015, when D was 15 years old, Mr Justice Keehan directed that:

  • D was confined (Objective Element of a deprivation of liberty);
  • Consent to what would otherwise amount to a deprivation of liberty, fell within (what was then known as) the "zone of Parental Responsibility" (now referred to as the Scope of Parental Responsibility) for D, for this decision, for D's parents;
  • D's parents did consent to his placement and as such, it was not a deprivation of liberty;
  • Those with Parental Responsibility can provide consent, thereby removing the Subjective Element, to a confinement that would otherwise amount to a DoL for a child as long as it was in the Scope of Parental Responsibility for that child and that parent.

D turned 16 on 23 April 2015 and Birmingham City Council applied to the Court of Protection. D was discharged from Hospital B and placed in a specialist residential placement. This was commissioned by the Local Authority but D's parents agreed to him being accommodated there under s.20 Children Act 1989 (Local Authority's duty to provide accommodation for a child/YP who needs it – cannot be used where someone with Parental Responsibility objects).

It was agreed that D's placement was a confinement (Objective Element of a deprivation of liberty).

The Local Authority argued that D's placement was not a DoL which required regularisation, for two reasons:

  1. Subjective Element not satisfied – because D's parents could give consent on D's behalf;
  2. State imputability not satisfied – because the State was not responsible for the placement; it was with the parents' agreement.

The Official Solicitor on behalf of D disagreed:

  1. Parents cannot provide consent for a confinement that would otherwise be a DoL, no matter what age the child/YP; and
  2. As the Local Authority paid for the placement, took the lead in identifying the placement and devised and approved the regime that he is cared for in the placement, it was imputable to the State.

In November 2015, Mr Justice Keehan concluded in Birmingham City Council v D and W [2016] EWCOP 8 that:

  1. Those with Parental Responsibility can provide consent to what would otherwise be a DoL for children (i.e. under 16 years old);
  2. Those with Parental Responsibility cannot provide consent to what would otherwise be a DoL for Young Persons (i.e. 16-17 years old);
  3. In the circumstances arising for D, his confinement was imputable to the State;
  4. Authorised the DoL as being in D's best interests under the MCA 2005.

On 23 November 2015, D transferred to another placement, where his DoL was authorised by Order from Mr Justice Keehan.

The Local Authority appealed the decision, arguing that Mr Justice Keehan was wrong on three grounds (CoA's decision is highlighted in bold):

  1. To suggest that those with Parental Responsibility cannot provide consent to what would otherwise be a DoL for Young Persons (i.e. 16-17 years old) (upheld);
  2. To suggest that the State was imputable (dismissed); and
  3. To find that D was deprived of his liberty, when the circumstances of his confinement were so appropriately monitored (dismissed).

The Equality and Human Rights Commission was permitted to intervene (take part in) in the appeal.

Key Findings
  • Parent with Parental Responsibility can provide consent to a confinement that would otherwise be a DoL for both children and young persons (who lack Gillick competence) as long as is within the scope of Parental Responsibility;
  • For this purpose, appears to draw a distinction between young person's with and without Gillick competence, whereas the same distinction is not drawn with children;
  • Parental Responsibility, in UK common law, applies and is exercisable to 16-17 year olds who lack Gillick competence;
  • The legislation which distinguishes YP from children does not specifically apply to the context of deprivation of liberty – and as such, does not mean that the Courts should apply the principles/ethos of it to this issue;
  • When determining the scope of Parental Responsibility, there are numerous factors to consider:
    • Age and maturity of the child/young person;
    • Extent and ability of child/young person to make decisions for themselves;
    • Young person's condition and physical disabilities;
  • Local Authority identified the placement, assessed D's needs and care regime, approved the package of care and funded it – in those circumstances, it is directly imputable to the State;
  • Where a public authority knows, or ought to know, that P is subject to restrictions on their liberty by a private individual that amount to a DoL, the positive obligations under Article 5 are triggered:
    • Duty to investigate whether there is a DoL;
    • Continue to monitor;
    • Take reasonable and proportionate measures to bring the DoL to an end or obtain appropriate authorisation for it.
  • The statutory regime under s.20 Children Act 1989, which provides for scrutiny and review of the placement and package of support, does not satisfy the requirements of Article 5(4) because it does not achieve involvement of the Court.

 

Who can provide consent for a DoL for a Young Person?

 

Person Conditions Yes or No? Override YP's capacitated refusal
YP if capacitated in accordance MCA 2005/Gillick competent Yes N/A
Parent with Parental Responsibility and if YP is not Gillick competent and if it is within the Scope of Parental Responsibility for that YP, in those circumstances and for that parent Yes No
Local Authority with Parental Responsibility No No
Court Court of Protection (if incapacitated) or Inherent Jurisdiction (with capacity) Yes Yes

 

This case summary was written by Hannah Taylor, Senior Associate Please contact Hannah for further information.

Bevan Brittan's Clinical Risk Team have prepared a comprehensive Knowledge Pack which offers guidance to commissioners, providers and care co-ordinators on the use of CCTV. The Pack is aimed at care environments with service users who lack capacity to consent to their care regime.

Please contact Hannah Taylor if you would like to receive the Knowledge Pack or wish to discuss the Use of CCTV in Care Packages any further.

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