Birmingham City Council v D  EWCOP 8
This case has been summarised on 39 Essex Chambers, 'Mental Capacity Law Newsletter' (issue 62, February 2016).
Birmingham City Council v DB
2015 Nov 16; 17; 2016 Jan 21
Keehan J ’ Children — Incapacitated child — Deprivation of liberty — Incapacitated young person aged 16 — Placement in circumstances amounting to deprivation of liberty — Whether parents of child aged 16 or 17 able to consent to confinement amounting to deprivation of liberty — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5 — Mental Capacity Act 2005 (c 9), s 2(5)
In May 2015, in proceedings brought by the local authority in relation to D, aged 16, the judge made declarations as to D’s lack of capacity to litigate, to make decisions about his residence and to make decisions as to his care, including keeping himself safe in the community. The judge further made orders for the transfer and placement of D from hospital, where he had been living since October 2013 in circumstances of confinement with his parents’ consent, to a residential unit identified by the local authority. D’s parents agreed to him being accommodated by the local authority pursuant to section 20 of the Children Act 1989. D moved to the local authority funded placement in June 2015. At a further hearing it was conceded that the circumstances in which D resided and was educated constituted an objective confinement which satisfied the first limb of the three-limb test of a deprivation of liberty laid down by the European Court of Human Rights but the local authority submitted that the remaining two limbs of the test were not satisfied because (i) D’s parents were able to consent to his confinement, so that that which might otherwise result in a deprivation of liberty did not do so, and (ii) D resided at his residential unit under the auspices of section 20 of the 1989 Act and thus was placed in accommodation to which his parents had agreed. Accordingly, the local authority contended that his placement and confinement both at the residential unit and his school were not imputable to the state but rather were at the request of, and with the consent of, his parents. The Official Solicitor, as D’s litigation friend, contended (i) that D’s parents could not consent to his confinement now that he had attained the age of 16 years and (ii) that notwithstanding that D was looked after by the local authority pursuant to a section 20 agreement with his parents, the circumstances of his confinement were plainly and clearly imputable to the state via the acts of the local authority. The Official Solicitor further contended that no parent in any circumstances might consent to the confinement of their child, whatever their age, in circumstances which absent a valid consent would amount to a deprivation of liberty.
On the local authority’s application—
Held, although in appropriate circumstances a parent might give a valid consent to the confinement of their child of 15 years and younger in what would otherwise amount to a deprivation of liberty, Parliament had on numerous occasions chosen to distinguish the legal status of those who had not attained the age of 16 years, those aged 16 and 17, and those who had attained their majority. Parliament had chosen to include incapacitous 16- and 17-year-old young persons within the remit of the Mental Capacity Act 2005 while an incapacitous young person under the age of 16 years was specifically excluded from the provisions of the Act by virtue of section 2(5). While parents still had parental responsibility for their 16- and 17-year-old children, the various international Conventions and statutory provisions such as the United Nations Convention on the Rights of the Child 1989 and the Human Rights Act 1998 recognised the need for a greater degree of respect for the autonomy of all young people but most especially for those who had attained the age of 16 and 17 years. Therefore, however close parents were to their child and however cooperative they were with treating clinicians, the parent of a 16- or 17-year-old young person might not consent to their confinement which, absent a valid consent, would amount to a deprivation of that young person’s liberty. Young people of 16 or 17 years were entitled to the full protection of their rights under article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms irrespective of their capacity to consent to their treatment or their living arrangements. The mere fact that D’s parents could at any stage object to his continued accommodation and remove him from the residential unit did not provide a definitive answer to the test of imputability to the state since that would completely ignore the fact that the local authority had identified the unit, assessed D’s needs and care regime, approved the package of care proposed by the unit and the regime under which D would reside there and had paid all the costs of his placement and education at the unit. Such circumstances were not a purely private arrangement with no state involvement but, even if they were, the state had a positive obligation under article 5.1 to protect D (paras 64, 100–106, 115, 123, 131, 132, 134, 139–146).
Storck v Germany (2006) 43 EHRR 6, Stanev v Bulgaria (2012) 55 EHRR 22, GC and In re D (A Child) (Deprivation of Liberty)B considered.
Jonathan Cowen, Victoria Flowers, Anita Raoand Eleanor Sibley (instructed by Solicitor, Birmingham City Council, Birmingham) for the local authority.
Alexander Ruck Keene (instructed by Cartwright King) for D, by his litigation friend, the Official Solicitor.
D’s mother, the second respondent, did not appear and was not represented.
Reported by: Jeanette Burn, Barrister