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Re D (a child) [2019] UKSC 42

This case provides welcome guidance on the safeguards that are owed to vulnerable 16 and 17 year olds who are being deprived of their liberty.

It's not always straightforward to decide if someone has been deprived of their liberty but there must always be three elements present:

  1. They must be detained for a not-negligible period of time
  2. They have not provided valid consent to the arrangements
  3. The state has detained them or knows they are detained

The 2014 Supreme Court case of Cheshire West changed how we understood the first element and it is now the law that someone will be deprived of their liberty if they are not free to leave and if they are under continuous supervision and control -

If someone is being deprived of their liberty and can't consent to it, it will be against the law unless special rules are followed. The person being deprived of their liberty must also have a right to legally challenge the deprivation.

The position is a little more complicated for children. Parents have the right to exercise control over their child, sometimes called the "scope of parental responsibility", without it being a deprivation of liberty.

When he was 14, D was placed in a hospital that provided mental health services for children and young people. The doors were locked and he was always supervised if he left the hospital.

Birmingham City Council brought the matter to the High Court and the judge said it was within the scope of parental responsibility for his parents to consent to him staying in the hospital but that when he turned 16, the Mental Capacity Act would apply. The Mental Capacity Act provides a framework for making decisions for people who are 16 and above where they lack the capacity to make those decision for themselves.

When D turned 16, Birmingham City Council went to the Court of Protection, the court that hears cases about the Mental Capacity Act. The Council asked the judge to agree that, although D lacked capacity to agree to arrangements himself, he wasn't being deprived of his liberty because his parents had agreed for him. The judge did not agree and said that parents could not consent for him because he had turned 16 and the Mental Capacity Act applied.

The Council appealed to the Court of Appeal, who reversed the decision and said that parents could consent on their 16 or 17 year old's behalf to a deprivation of liberty.

Finally, the lawyer acting on D's behalf appealed the case to the Supreme Court.

The Supreme Court made it clear that D's parents had only ever wanted what was best for him, but other children might not be so lucky and it was important that they were protected. The Court decided that:

  • A parent's right to control their children decreases as the child gets older
  • Children who lacked the capacity to make their own decisions about care arrangements, had a right to protection from being deprived of their liberty without lawful authority
  • A parent could only consent to their child being deprived of their liberty if it was normal for a child of that age. The level of supervision and control that D was subject to was not normal for a child of 16 or 17

Our thoughts

We're pleased that the first female majority in the Supreme Court recognised the importance of ensuring that 16 and 17 year olds who lack capacity deserve the same protection of their liberty as adults. This supports a recommendation in the independent review of the Mental Health Act that young people aged 16 or 17 should not be admitted or treated on the basis of parental consent.

However, this case leaves two question marks. Firstly, what protections should children under 16 have when the level of supervision and control that they are subject to is more than normal for their age? Secondly, how will deprivations of liberty be authorised where parents cannot consent on their child's behalf and does it mean that there will be an increase of detentions under the Mental Health Act?

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