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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> D (A Child) [2017] EWCA Civ 1695 (31 October 2017) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1695.html Cite as: [2017] EWCA Civ 1695, [2018] PTSR 1791, [2018] COPLR 1, (2018) 160 BMLR 61, [2018] 2 FLR 13 |
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CIVIL
DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
Mr Justice KEEHAN
[2016] EWCOP 8
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE DAVID
RICHARDS
and
LORD JUSTICE IRWIN
____________________
In the matter of ![]() ![]() ![]() |
____________________
Mr Henry Setright QC, Mr Alexander Ruck Keene and Ms Anna Bicarregui (instructed by Cartwright King) for D's
litigation friend the Official Solicitor
Ms Victoria Butler-Cole (instructed by the Commission) for the intervener The Equality and Human Rights Commission
Hearing dates:
8-9 February 2017
____________________
Crown Copyright ©
Sir James Munby, President of the Court of Protection :
"… what is the essential character of adeprivation
of liberty? … three components can be
derived
from Storck …, confirmed in Stanev …, as follows: (a) the objective component of confinement in a particular
restricted
place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of
responsibility
to the state. Components (b) and (c) are not in issue here, but component (a) is."
I shall refer,
by way of shorthand, to these three components as Storck components (a), (b) and (c); sometimes, as we shall see, they are
referred
to as Storck limbs (1), (2) and (3).
The facts
"… the externaldoor
to the unit was locked,
D
was checked on by staff every half an hour or so and he sought out the staff at other times. His school was integral to the unit. If
D
left the site for
relevant
activities he was accompanied by staff on a one-to-one basis. Accordingly he was under constant supervision and control."
"65 I am satisfied that the circumstances in whichD
is accommodated would amount to a
deprivation
of liberty[1] but for his parents' consent to his placement there.
66 I am satisfied that, on the particular facts of this case, the consent ofD's
parents to his placement at Hospital B, with all of the
restrictions
placed upon his life there, falls within the 'zone of parental
responsibility'.
In the exercise of their parental
responsibility
for
D,
I am satisfied they have and are able to consent to his placement."
He declined
(paras 69-70) to express any views as to what the position would be if
D
moved to a proposed new placement or once he
reached
the age of 16.
"24 The local authority took the lead in finding a suitable alternative placement forD
once it had been
decided
in August 2014 that he was fit to be
discharged
from Hospital B …
25 … His parents were, I note, "kept fully informed of the placement process inregular
![]()
review
meetings held at [Hospital B]" …
26 The choice of Placement B, theregime
that
D
would experience when he moved there and the
drawing
up of his personal care plan were led by the local authority's social work team in consultation with
D's
treating clinicians and with the staff at Placement B. His parents agreed to the same and
recognised
that such a placement was in
D's
welfare best interests.
27 I note thatD's
placement at Placement B is funded exclusively by the local authority.
28D's
parents agreed to him being accommodated by the local authority pursuant to section 20 of the
Children
Act 1989 in June 2015."
"23 Placement B is set within its own grounds in England. In addition to the main house there are 12 self-containedresidential
units on the site each with its own fenced garden.
D
![]()
resides
at House A with three other young people of a similar age. The educational facility
D
attends is on the Placement B site. He is taught in a class with four other young people.
29 As at Hospital B,D
is under constant supervision and control. His life at Placement B, is
described
as follows:
"D
has his own bedroom. All external
doors
are locked and
D
is not allowed to leave the premises unless it is for a planned activity.
"D
![]()
receives
one-to-one support throughout his waking
day,
and at night, the ratio of staff to students is 2:1. He is not initially allowed unaccompanied access to the community.
"D
attends school every weekday from 8.45 am to 2.00 pm. He then eats his lunch on
return
to House A. He will then get changed and partake in leisure activities. Currently every Thursday afternoon
D
attends swimming and will eat his
dinner
outside of House A with staff.
"House A has all entrances and exits to the building locked by staff. When wishing to go out into the gardenD
needs to
request
a staff member to open the
door.
These
doors
are sometimes left open when there is a group leisure activity in the garden.
"D
will be having contact with his parents each Saturday for up to five hours. Currently his parents have been visiting for three hours as
D
![]()
does
get increasingly anxious
during
this time. There have been no significant issues since
D's
move to Placement B."
"(a) no parent in any circumstances may consent to the confinement of theirchild,
whatever their age, in circumstances which absent a valid consent would amount to a
deprivation
of liberty; and (b) on that basis my
decision
in In
re
![]()
D
was wrong in so far as I held that
D's
parents could consent to his confinement in Hospital B when he was under 16 years of age."
"D
is to
reside
and
receive
care at [Placement B] pursuant to arrangements made by [the local authority] and set out in the Care Plan [
dated
12 February 2016 and amended on 8 March 2016]; and the
restrictions
in place pursuant to the Care Plan amounting to
deprivation
of
D's
liberty, such
deprivation
of
D's
liberty is hereby authorised."
The appeal
The hearing
Article 5: the Strasbourg framework
"whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives."
As I read
her judgment (see paras 40-41), Baroness Hale was using "free to leave" in the sense I had
described
in JE v
DE
[2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, para 115:
"The fundamental issue in this case … is whetherDE
was
deprived
of his liberty to leave the X home and whether
DE
has been and is
deprived
of his liberty to leave the Y home. And when I
refer
to leaving the X home and the Y home, I
do
not mean leaving for the purpose of some trip or outing approved by SCC or by those managing the institution; I mean leaving in the sense of
removing
himself permanently in order to live where and with whom he chooses …"
"It should be observed at the outset that family life in the contracting states encompasses a broad range of parental rights andresponsibilities
in
regard
to care and custody of minor
children.
The care and upbringing of
children
normally and necessarily
require
that the parents or an only parent
decide
where the
child
must
reside
and also impose, or authorise others to impose, various
restrictions
on the
child's
liberty. Thus the
children
in a school or other educational or
recreational
institution must abide by certain rules which limit their freedom of movement and their liberty in other
respects.
Likewise a
child
may have to be hospitalised for medical treatment. Family life in this sense, and especially the rights of parents to exercise parental authority over their
children,
having
due
![]()
regard
to their corresponding parental
responsibilities,
is
recognised
and protected by the Convention, in particular by article 8. Indeed the exercise of parental rights constitutes a fundamental element of family life."
"72 The Court accepts, with the Government, that the rights of the holder of parental authority cannot be unlimited and that it is incumbent on the State to provide safeguards against abuse. However, itdoes
not follow that the present case falls within the ambit of Article 5.
Therestrictions
imposed on the applicant were not of a nature or
degree
similar to the cases of
deprivation
of liberty specified in paragraph (1) of Article 5 … Indeed, the
restrictions
to which the applicant was subject were no more than the normal
requirements
for the care of a
child
of 12 years of age
receiving
treatment in hospital. The conditions in which the applicant stayed thus
did
not, in principle,
differ
from those obtaining in many hospital wards where
children
with physical
disorders
are treated.
Regarding
the weight which should be given to the applicant's views as to his hospitalisation, the Court considers that he was still of an age at which it would be normal for a
decision
to be made by the parent even against the wishes of the
child.
There is no evidence of bad faith on the part of the mother. Hospitalisation was
decided
upon by her in accordance with expert medical advice. It must be possible for a
child
like the applicant to be admitted to hospital at the
request
of the holder of parental rights, a case which clearly is not covered by paragraph (1) of Article 5 …
73 The Court concludes that the hospitalisation of the applicantdid
not amount to a
deprivation
of liberty within the meaning of Article 5, but was a
responsible
exercise by his mother of her custodial rights in the interest of the
child.
Accordingly, Article 5 is not applicable in the case."
"The sevendissenting
judges considered that placing a 12-year-old boy who was not mentally ill in a psychiatric ward for several months against his will was indeed a
deprivation
of liberty. It would appear, therefore, that the case turns on the proper limits of parental authority in
relation
to a
child.
HREF='#note4'>[4] As already mentioned (para 4 above) there is no equivalent in English law to parental authority over a mentally incapacitated adult."
She added (para 41):[5]
"Although Nielsen 11 EHRR 175 has not beendeparted
from, it is to be
regarded
as a case of substituted consent, and thus not fulfilling component (b)."
"… in the present case, there are three aspects which could engage Germany'sresponsibility
under the Convention for the applicant's
detention
in the private clinic in Bremen. First, the
deprivation
of liberty could be imputable to the state
due
to the
direct
involvement of public authorities in the applicant's
detention.
Secondly, the State could be found to have violated Art.5(1) in that its courts, in the compensation proceedings brought by the applicant, failed to interpret the provisions of
civil
law
relating
to her claim in the spirit of Art 5. Thirdly, the State could have violated its positive obligations to protect the applicant against interferences with her liberty carried out by private persons."
The present case relates
to the first and third aspects. In
relation
to the third, the court
referred
(paras 101-102) to the positive obligation of the State "to take appropriate steps to provide protection against an interference with those rights either by State agents or private parties", so as to provide "effective protection of vulnerable persons, including
reasonable
steps to prevent a
deprivation
of liberty of which the authorities have or ought to have knowledge."
"95 … Where the State – here, a local authority – knows or ought to know that a vulnerablechild
or adult is subject to
restrictions
on their liberty by a private individual that arguably give rise to a
deprivation
of liberty, then its positive obligations under Art 5 will be triggered. (i) these will include the
duty
to investigate, so as to
determine
whether there is, in fact, a
deprivation
of liberty …; (ii) if, having carried out its investigation, the local authority is satisfied that the objective element is not present, so there is no
deprivation
of liberty, the local authority will have
discharged
its immediate obligations. However, its positive obligations may in an appropriate case
require
the local authority to continue to monitor the situation in the event that circumstances should change; (iii) if, however, the local authority concludes that the measures imposed
do
or may constitute a
deprivation
of liberty, then it will be under a positive obligation … to take
reasonable
and proportionate measures to bring that state of affairs to an end. What is
reasonable
and proportionate in the circumstances will, of course,
depend
upon the context, but it might for example …
require
the local authority to exercise its statutory powers and
duties
so as to provide support services for the carers that will enable inappropriate
restrictions
to be ended, or at least minimised; (iv) if, however, there are no
reasonable
measures that the local authority can take to bring the
deprivation
of liberty to an end, or if the measures it proposes are objected to by the individual or his family, then it may be necessary for the local authority to seek the assistance of the court in
determining
whether there is, in fact, a
deprivation
of liberty and, if there is, obtaining authorisation for its continuance.
96 What emerges from this is that, whatever the extent of a local authority's positive obligations under Art 5, itsduties
… are limited. In essence, its
duties
are threefold: a
duty
in appropriate circumstances to investigate; a
duty
in appropriate circumstances to provide supporting services; and a
duty
in appropriate circumstances to
refer
the matter to the court."
That analysis was adopted and applied by Charles J in Staffordshire County Council v K and others [2016] EWCOP 27, [2016] Fam 419, appeal dismissed
Staffordshire County Council v K and others [2016]
EWCA
Civ
1317, [2017] 2 WLR 1131.
Article 5: the Strasbourg framework – children
"If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are beingdeprived
of their liberty. Furthermore, that
deprivation
is the
responsibility
of the state. Similar constraints would not necessarily amount to a
deprivation
of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental
responsibilities
and outside the legal framework governing state intervention in the lives of
children
or people who lack the capacity to make their own
decisions."
"72 In the case ofchildren
living at home, what might otherwise be a
deprivation
of liberty would normally not give rise to an infringement of article 5 because it will have been imposed not by the state, but by virtue of what the Strasbourg court has called "the rights of the holder of parental authority", which are extensive albeit that they "cannot be unlimited" (see Nielsen v
Denmark
(1988) 11 EHRR 175, para 72, a
decision
which, at least on its facts, is controversial, as evidenced by the strength of the
dissenting
opinions). However, it is fair to say that, while this point would apply to adoptive parents, I
doubt
that it would include foster parents (unless, perhaps, they had the benefit of a
residence
order). But in the great majority of cases of people other than young
children
living in ordinary
domestic
circumstances, the
degree
of supervision and control and the freedom to leave would take the situation out of article 5.4 …
73 … The comparison of therestrictions
in the hospital in Nielsen v
Denmark
11 EHRR 175, para 70 with "a
real
home" was made in connection with consideration of the contention that the "treatment given at the hospital and the conditions under which it was administered were inappropriate in the circumstances." The case involved a
child,
and was
decided
on the basis that his mother was exercising her article 8 rights
responsibly,
in good faith and on the basis of medical advice: see para 71 …"
"77 The question whether one isrestricted
(as a matter of actuality) is
determined
by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the
relevant
comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less
resentful,
of the constraint but, objectively, limitations on their freedom are in place.
78 Allchildren
are (or should be) subject to some level of
restraint.
This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any
child
or young person of similar age, their liberty would not be
restricted,
whatever their level of
disability.
As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a
restriction
of liberty in their cases. Because the
restriction
of liberty is – and must
remain
– a constant feature of their lives, the
restriction
amounts to a
deprivation
of liberty.
79 Very youngchildren,
of course, because of their youth and
dependence
on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all
children
of tender age. There is no question, therefore, of suggesting that infant
children
are
deprived
of their liberty in the normal family setting. A comparator for a young
child
is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEG's liberty was not
restricted.
It is because they can – and must – now be compared to
children
of their own age and
relative
maturity who are free from
disability
and who have access (whether they have
recourse
to that or not) to a range of freedoms which MIG and MEG cannot have
resort
to that MIG and MEG are
deprived
of liberty."
i) Nielsen is, fundamentally, a case about Storck component (b); or, to be more precise, about the proper ambit of Storck component (b) and the extent and limit of parental authority, which between them determine
whether Storck component (c) arises for consideration.
ii) Whatever its implications in relation
to adults, a matter which is not before us and which, as we shall see (paragraphs 114, 120, 147-148 below), is not free from
difficulty,
Nielsen is good authority in
relation
to
children.
iii) In accordance with Nielsen, 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 for the purposes of Storck component (b) to something which is a "confinement" for the purposes of Storck component (a). Those circumstances, although "extensive", are not "unlimited."
This, of itself, does
not provide an answer to the question I have posed (paragraph 31 above). Nor, as it seems to me,
does
anything said either by Baroness Hale of Richmond
DPSC
or by Lord Neuberger of Abbotsbury PSC.
"Very youngchildren,
of course, because of their youth and
dependence
on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all
children
of tender age. There is no question, therefore, of suggesting that infant
children
are
deprived
of their liberty in the normal family setting."
This reflects
what he had said a little earlier (para 77):
"The question whether one isrestricted
(as a matter of actuality) is
determined
by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited."
The point is picked up later (para 79):
"While they were very young, therefore, MIG and MEG's liberty was notrestricted
… they can – and must – now be compared to
children
of their own age and
relative
maturity who are free from
disability
…"
The appeal
The appeal: ground (2) – Storck component (c)
"131 The mere fact thatD's
parents could at any stage object to his continued accommodation and
remove
him from the
residential
unit
does
not, in my judgment, provide a
definitive
answer to the test of imputability to the state. If that were to be the case, it would on the facts of this case, completely ignore the fact that this local authority 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 the fact that it pays all the costs of his placement and education at the unit.
132 In no sense at all could this set of circumstances be considered a purely private arrangement with no state involvement. The role of the local authority in establishing and maintainingD's
placement is central and pivotal. To
reach
a contrary conclusion would be perverse."
"I am satisfied thatD's
case falls within category (iv) identified by Munby LJ in
Re
A and C. The circumstances of
D's
confinement are necessary and in his welfare best interests but that
does
not prevent them amounting to a
deprivation
of liberty. Accordingly, the local authority must make an application to the court to
determine
whether
D
is
deprived
of his liberty and, if so, to obtain authorisation for its continuance."
"the local authority must make an application to the court … in all cases where 16- or 17-year-old young people are objectively confined in satisfaction of the first limb of the Storck test and, of course, where the second limb is satisfied and either the third limb is satisfied because the local authority isdirectly
![]()
responsible
for the confinement or the local authority knows or ought to know of a private confinement and is under the positive obligation identified by Munby LJ in
Re
A and C."
"136 Ireject
the assertion of the local authority that I should not
draw
this conclusion because of the potential adverse
resource
implications of local authorities having to make numerous applications to the Court of Protection …
137 The issue of theresource
implications is a matter for the local authority and, ultimately, the Government; it is not, should not and, in my judgment, cannot be a
relevant
consideration for this court.
138 The protection of the human rights of those withdisabilities
or the vulnerable members of our society, most especially in
respect
of the protection afforded by article 5.1, is too important and fundamental to be sacrificed on the altar of
resources."
The appeal: ground (3)
"… the local authoritychild
care
review,
chaired by an independent
reviewing
officer, would not, in my judgment, afford the
required
safeguards and checks, sufficiently independent of the state."
The appeal: ground (1) – Storck component (b)
"Meaning of "parentalresponsibility".
(1) In this Act "parentalresponsibility"
means all the rights,
duties,
powers,
responsibilities
and authority which by law a parent of a
child
has in
relation
to the
child
and his property.
(2) It also includes the rights, powers andduties
which a guardian of the
child's
estate (appointed, before the commencement of section 5, to act generally) would have had in
relation
to the
child
and his property.
(3) The rightsreferred
to in subsection (2) include, in particular, the right of the guardian to
receive
or
recover
in his own name, for the benefit of the
child,
property of whatever
description
and wherever situated which the
child
is entitled to
receive
or
recover."
"… among the various meanings of the word "custody" there are two in common use inrelation
to infants[6] which are
relevant
and need to be carefully
distinguished.
One is wide – the word being used in practice as almost the equivalent of guardianship: the other is limited and
refers
to the power physically to control the infant's movements.
In its limited meaning it has that connotation of an ability torestrict
the liberty of the person concerned to which
Donaldson
J
referred
in
Duncan's
case [
Duncan
v Lambeth London Borough Council [1968] 1 QB 747], at p 762. This power of physical control over an infant by a father in his own right qua guardian by nature … was and is
recognised
at common law; but that strict power (which may be termed his "personal power") in practice ceases upon the infant
reaching
the years of
discretion.
When that age is
reached,
habeas corpus will not normally issue against the wishes of the infant. Although
children
are thought to have matured far less quickly in the era when the common law first
developed,
that age of
discretion
which limits the father's practical authority (see the
discussion
and judgment in
Reg
v Howes (1860) 3 E & E 332) was originally fixed at 14 for boys and 16 for girls (see per Lindley LJ in Thomasset v Thomasset [1894] P 295, 298).
… In its wider meaning the word "custody" is used as if it were almost the equivalent of "guardianship" in the fullest sense – whether the guardianship is by nature, by nurture, by testamentarydisposition,
or by order of a court … Adapting the convenient phraseology of counsel, such guardianship embraces a "bundle of rights," or to be more exact, a "bundle of powers," which continue until a male infant attains 21, or a female infant marries. These include power to control education, the choice of
religion,
and the administration of the infant's property. They include entitlement to veto the issue of a passport and to withhold consent to marriage. They include, also, … the personal power physically to control the infant until the years of
discretion
… It is thus clear that somewhat confusingly one of the powers conferred by custody in its wide meaning is custody in its limited meaning, namely, such personal power of physical control as a parent or guardian may have."
To similar effect, Karminski LJ, page 376, said this:
"Physical possession is only one aspect of custody. Other important aspects include governing power todecide
the
child's
![]()
religion
and education."
"[the] Courtrefused
to examine the
child
and ascertain its intelligence, holding that a guardian for nurture has a legal right to the custody of the ward, irrespective of the wishes of the ward, unless it be shewn that the custody is sought for improper objects, or that the application is not bonâ fide, or that the guardian making the application is grossly immoral. And, in this case, no more appearing than that the father had been a Protestant, and that the mother was a Catholic, and intended to educate the
child
in her own persuasion, the Court ordered the
child
to be given to its mother."
"It is unnecessary to travel through the cases seriatim, as they are allreviewed
in
Rex
v Greenhill (4 A & E 624), where the Court laid
down
the rule that, where a young person under twenty one years of age is brought before the Court by habeas corpus, if he be of an age to exercise a choice, the Court leaves the infant to elect where he will go, but, if he be not of that age, the Court must make an order for his being placed in the proper custody. Lord
Denman,
Littledale J, Williams J and Coleridge J all make age the criterion, and not mental capacity, to be ascertained by examination. They certainly
do
not expressly specify the age: but they cannot
refer
to seven as the criterion; and there is no intervening age marking the rights or
responsibility
of an infant till fourteen, when guardianship for nurture ceases, upon the supposition that the infant has now
reached
the years of
discretion."
"The question before us is purely one of law, whether a father is entitled to the custody of achild
between the age of fifteen and sixteen, notwithstanding that the
child
![]()
desires
not to be in his custody … Now the cases which have been
decided
on this subject shew that, although a father is entitled to the custody of his
children
till they attain the age of twenty-one, this Court will not grant a habeas corpus to hand a
child
which is below that age over to its father, provided that it has attained an age of sufficient
discretion
to enable it to exercise a wise choice for its own interests. The whole question is, what is that age of
discretion?
We
repudiate
utterly, as most
dangerous,
the notion that any intellectual precocity in an individual female
child
can hasten the period which appears to have been fixed by statute for the arrival of the age of
discretion;
for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The Legislature[7] has given us a guide, which we may safely follow, in pointing out sixteen as the age up to which the father's right to the custody of his female
child
is to continue; and short of which such a
child
has no
discretion
to consent to leaving him … We must order that the girl be given up to her father."
"The principles upon which Courts of Law act indealing
with persons brought up under a habeas corpus are very clearly stated in Coleridge J's judgment in
Rex
v Greenhill (1836) 4 A & E 625, 643: "A habeas corpus proceeds on the fact of an illegal
restraint.
When the writ is obeyed, and the party brought up is capable of using a
discretion,
the rule is simple, and
disposes
of many cases, namely, that the individual who has been under
restraint
is
declared
at liberty; and the Court will
direct
that the party shall be attended home by an officer to make the order effectual. But where the person is too young to have a choice, we must
refer
to legal principles to see who is entitled to the custody, because the law presumes that where the legal custody is, no
restraint
exists; and where the
child
is in the hands of a third person, that presumption is in favour of the father." The age at which a
child
is
deemed
to have a
discretion
is fourteen in the case of a boy, and sixteen in the case of a girl (see
Reg
v Clarke (1857) 7 E & B 186). The age of sixteen appears to have been adopted by
reason
of the language used in the statute 4 & 5 Ph & M c 8
relating
to the abduction of girls (see
Reg
v Howes (1860) 3 E & E 332). After a
child
has attained the age of
discretion,
a Court of Common Law will set it free if illegally
detained,
but will not force a
child
against his or her will to
remain
with his or her father or legal guardian … It must not, however, be inferred from the
decisions
![]()
referred
to above that a father has no legal right to the custody of his
child
after he or she has attained the age of fourteen or sixteen. The father's right to such custody exists until the
child
attains twenty-one … Such right, moreover, was
distinctly
![]()
recognised
… by Cockburn CJ in
Reg
v Howes."
"… the Court of Chancery exercised the power of the Crown as parens patriae over infants, and in exercise of this jurisdiction the power of the Court has always been much more extensive than that possessed by Courts of Common Law under a writ of habeas corpus … The Court of Chancery has exercised this larger power in aid of fathers and guardians overchildren
who have attained the age of
discretion.
Thus … boys over sixteen have been compelled to go to the schools selected by their guardians; and in Todd v Lynes,
referred
to in Simpson on Infants (2nd ed p. 145), a boy of seventeen was taken from a monastery and given up to the father. What the wishes of the boy were, however,
does
not appear. In the exercise of this jurisdiction the rights of fathers and legal guardians were always
respected,
but controlled to an extent unknown at common law by considering the
real
welfare of the infants."
He went on, page 300:
"By the Judicature Act, 1873, eachDivision
of the High Court can exercise the jurisdiction of the old Court of Chancery, and by [section 25(1)] it is enacted that, "in questions
relating
to the custody and education of infants, the rules of equity shall prevail." This enactment enables all
Divisions
of the High Court, even on habeas corpus, to
regard
something more than the strict rights of fathers and guardians, and
requires
all the
Divisions
to
recognise
the cardinal principle on which the Court of Chancery always proceeded, namely, that in
dealing
with infants the primary consideration is their benefit."
"In my judgment, the widediscretion
conferred on the
Divorce
Court by the
Divorce
Acts … ought to be exercised in each particular case as the circumstances of that case may
require;
and in exercising such
discretion
the
Divorce
Court, which has all the old powers of the Court of Chancery, is not and ought not to consider itself fettered by any supposed rule to the effect that it has no power to make orders under the Acts
respecting
the custody, maintenance, and education of infants who, being males, are over fourteen, or who, being females, are over sixteen. I am clearly of opinion that, whether the
children
are males or females, the jurisdiction conferred by the sections of the
Divorce
Acts on which this case turns can, since the Judicature Acts, at all events, be exercised
during
the whole period of infancy – that is, until the
children,
whether males or females, attain twenty-one; although I
do
not say that a
child
who has attained years of
discretion
can, except under very special circumstances, be properly ordered into the custody of either parent against such
child's
own wishes (emphasis added)."
"The basis upon which thedecisions
are founded is the assumption that the right of the parent to the custody of his
child
terminates at the age of sixteen. But is this correct? No
doubt
a writ of habeas corpus could not go to compel a
child
over the age of sixteen to
return
to the custody of the parent when such
child
was unwilling to submit to such custody; but, subject to such unwillingness on the part of the
child,
I can entertain no
doubt
that the parent is entitled to the custody of his
child
as against anybody
detaining
the
child
against its will up to the age of twenty-one. There can, I think, be no
doubt
that the right of parents to the control and guardianship of their
children
exists up to the age of twenty-one years, unless the parents have by their own grossly immoral and improper conduct forfeited their rights and abdicated their parental authority."
"adwindling
right which the courts will hesitate to enforce against the wishes of the
child,
and the more so the older he is. It starts with a right of control and ends with little more than advice."
This observation anticipated the vitally important decision
of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority and
Department
of Health and Social Security [1986] AC 112.
"Consent by persons over 16 to surgical, medical anddental
treatment.
(1) The consent of a minor who has attained the age of sixteen years to any surgical, medical ordental
treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.
(2) In this section "surgical, medical ordental
treatment" includes any procedure undertaken for the purposes of
diagnosis,
and this section applies to any procedure (including, in particular, the administration of an anaesthetic) which is ancillary to any treatment as it applies to that treatment.
(3) Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted."
"This it clearly is, if only because a boy of 14 or a girl of 16 can give an adequate consent to being out of its father's custody or in that of another so as todefeat
any claim of the father by habeas corpus to have it back. Furthermore, albeit there may
remain
until 18 a legal right of control, it may, as the
child
grows older, be necessary for the parents, because physical control is no longer practical, to seek the assistance of the court to buttress and support the legal right."
He returned
to the same point, page 132:
"… it still seems to be the case that consent of thechild
is no answer to habeas corpus unless the
child
has attained the age of either 14 or 16 as the case may be."
And again, page 134:
"in habeas corpus proceedings someone who hasreached
the age of
discretion
may give a consent which will prevent a parent
recovering
custody."
"… parental rights to control achild
![]()
do
not exist for the benefit of the parent. They exist for the benefit of the
child
and they are justified only in so far as they enable the parent to perform his
duties
towards the
child,
and towards other
children
in the family."
Lord Scarman said the same, pages 183-184, 185:
"Parental rights clearlydo
exist, and they
do
not wholly
disappear
until the age of majority. Parental rights
relate
to both the person and the property of the
child
– custody, care, and control of the person and guardianship of the property of the
child
… The principle of the law, as I shall endeavour to show, is that parental rights are
derived
from parental
duty
and exist only so long as they are needed for the protection of the person and property of the
child.
The principle has been subjected to certain age limits set by statute for certain purposes: and in some cases the courts have
declared
an age of
discretion
at which a
child
acquires before the age of majority the right to make his (or her) own
decision.
But these limitations in no way undermine the principle of the law, and should not be allowed to obscure it.
… The principle is that parental right or power of control of the person and property of hischild
exists primarily to enable the parent to
discharge
his
duty
of maintenance, protection, and education until he
reaches
such an age as to be able to look after himself and make his own
decisions."
"… the common law has never treated [parental] rights as sovereign or beyondreview
and control. Nor has our law ever treated the
child
as other than a person with capacities and rights
recognised
by law."
Lord Templeman in his dissenting
speech said the same, page 200:
"Parental power must be exercised in the best interests of the infant and the court may intervene in the interests of the infant at the behest of the parent or at the behest of a third party. The court may enforce parental right, control the misuse of parental power or uphold independent views asserted by the infant. The court will be guided by the principle that the welfare of the infant is paramount."
The implications of this can be seen in Re
G (Education:
Religious
Upbringing) [2012]
EWCA
Civ
1233, [2013] 1 FLR 677, paras 33, 39:
"33 … Achild's
welfare is to be judged today by the standards of
reasonable
men and women in 201[7], not by the standards of their parents in 1970, and having
regard
to the ever changing nature of our world: changes in our understanding of the natural world, technological changes, changes in social standards and, perhaps most important of all, changes in social attitudes.
…
39 … Achild's
best interests have to be assessed by
reference
to general community standards, making
due
allowance for the entitlement of people, within the limits of what is permissible in accordance with those standards, to entertain very
divergent
views about the
religious,
moral, social and secular objectives they wish to pursue for themselves and for their
children
…"
"There is a point … at which one has to stand back and say: is this within ordinary acceptable parentalrestrictions
upon the movements of a
child
or
does
it
require
justification?"
"It is, in my view, contrary to the ordinary experience of mankind, at least in Western Europe in the present century, to say that achild
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. Moreover, the
degree
of parental control actually exercised over a particular
child
![]()
does
in practice vary considerably according to his understanding and intelligence and it would, in my opinion, be unrealistic for the courts not to
recognise
these facts. Social customs change, and the law ought to, and
does
in fact, have
regard
to such changes when they are of major importance … It is a question of fact for the judge (or jury) to
decide
whether a particular
child
can give effective consent to contraceptive treatment."
He went on, page 172, to express his agreement with Lord Denning
MR's
description
of parental authority as a "
dwindling
right." Lord Scarman said the same, page 186:
"The lawrelating
to parent and
child
is concerned with the problems of the growth and maturity of the human personality. If the law should impose upon the process of "growing up" fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of
realism
in an area where the law must be sensitive to human
development
and social change … Unless and until Parliament should think fit to intervene, the courts should establish a principle flexible enough to enable justice to be achieved by its application to the particular circumstances proved by the evidence placed before them.
The underlying principle of the law was exposed by Blackstone and can be seen to have been acknowledged in the case law. It is that parental right yields to thechild's
right to make his own
decisions
when he
reaches
a sufficient understanding and intelligence to be capable of making up his own mind on the matter
requiring
![]()
decision."
"The habeas corpus "age ofdiscretion"
cases are … no guide as to the limits which should be accepted today in marking out the bounds of parental right, of a
child's
capacity to make his or her own
decision,
and of a
doctor's
![]()
duty
to his patient. Nevertheless the "age of
discretion"
cases are helpful in that they
do
![]()
reveal
the judges as accepting that a minor can in law achieve an age of
discretion
before coming of full age. The "age of
discretion"
cases are cases in which a parent or guardian (usually the father) has applied for habeas corpus to secure the
return
of his
child
who has left home without his consent. The courts would
refuse
an order if the
child
had attained the age of
discretion,
which came to be
regarded
as 14 for boys and 16 for girls and
did
not wish to
return.
The principle underlying them was plainly that an order would be
refused
if the
child
had sufficient intelligence and understanding to make up his own mind." [The] passage from the judgment of Cockburn CJ in
Reg
v Howes (1860) 3 E & E 332 … illustrates their
reasoning
and shows how a fixed age was used as a working rule to establish an age at which the
requisite
"
discretion"
could be held to be achieved by the
child
… The principle is clear: and a fixed age of
discretion
was accepted by the courts by analogy from the Abduction Acts (the first being the Act of 1557 …). While it is unrealistic today to treat a 16th century Act as a safe guide in the matter of a girl's
discretion,
and while no modern judge would
dismiss
the intelligence of a teenage girl as "intellectual precocity," we can agree with Cockburn C.J. as to the principle of the law – the attainment by a
child
of an age of sufficient
discretion
to enable him or her to exercise a wise choice in his or her own interests."
"It is a question of fact for the judge … todecide
whether a particular
child
can give effective consent …"
Likewise, Lord Scarman's reference,
page 186, to:
"a principle flexible enough to enable justice to be achieved by its application to the particular circumstances proved by the evidence."
i) The parental power was precisely as described
by Sachs LJ subject only to the substitution, when applying the principles set out by Sachs LJ in
relation
to the concept of the age of
discretion,
of the test of what we now call 'Gillick capacity' in place of the previous fixed ages.
ii) The ambit or extent of parental responsibility,
the extent of the "zone" of parental
responsibility,
in any particular case was to be ascertained by
reference
to general community standards in contemporary Britain, the standards of
reasonable
men and women in 1985 (now 2017). To adopt
Dame
Elizabeth's words: Are the
restrictions
being imposed by this parent in this case "within ordinary acceptable parental
restrictions
upon the movements of a
child"?
"Sherecognised
that every
child
was subject to a
degree
of control and
deprivation
of free movement. Examples were given such as the
child
who was told by his mother that he could not go out to the cinema because he had not completed his homework or the
child
in boarding school with school rules which
deprived
him of free movement outside the school grounds. She accepted that the right to liberty was not absolute and that some
deprivation
of liberty
did
not come within article 5. She argued, however, that it was a question of
degree,
and the point came at which the
restrictions
were so inhibiting that it became a breach of article 5. She submitted that in a secure unit, by its very nature, a
child
was
deprived
of his liberty."
She then, para 23, summarised the submission of Mr Neil Garnham, as he then was, appearing for the Secretary of State for Health and the Lord Chancellor:
"Mr Garnham pointed to the approach of the European Court of Human Rights thatrestrictions
upon the liberty of a
child
need not amount to
deprivation
of liberty. He submitted that the placing of K in secure accommodation, particularly since it was
done
with the consent of the parents who still consented to him
remaining
there, was within the lawful application of parental
responsibility
and was not a
deprivation
of liberty within article 5."
"27 It is clear that not everydeprivation
of liberty comes within the ambit of article 5. Parents are given a wide measure of
discretion
in the upbringing of their
children.
This was
recognised
by the European Court in Nielsen v
Denmark
11 EHRR 175 …
28 Irecognise
the force of the principles set out in … Nielsen's case ... There is a point, however, at which one has to stand back and say: is this within ordinary acceptable parental
restrictions
upon the movements of a
child
or
does
it
require
justification? …
29 … it is clear that the purpose of section 25 of the 1989 Act, as set out in the interpretation in theregulations
![]()
dependent
upon it, is to
restrict
the liberty of the
child
… If a parent exercised those powers by
detaining
a
child
in a similar
restrictive
fashion and was challenged to justify such
detention,
for my part I
doubt
whether the general rights and
responsibilities
of a parent would cover such an exercise of parental authority. It might be permissible for a few
days
but not for nearly two years. A court under our
domestic
law would be likely to intervene."
"99 Mr Garnham's first submission on behalf of the Secretary of State for Health was that K had not beendeprived
of his liberty for the purposes of article 5. The local authority had simply exercised parental
responsibility
for him in his own best interests. There was some interesting
discussion
about the way in which parents
restrict
the movements of their
children
from time to time by, for example, putting young
children
into bed when they would rather be up, or "grounding" teenagers when they would prefer to be partying with their friends, or sending
children
to boarding schools, entrusting the schools with authority to
restrict
their movements. All this
reflects
the normal working of family life in which parents are
responsible
for bringing up, teaching, enlightening and
disciplining
their
children
as necessary and appropriate, and into which the law and local authorities should only intervene when the parents' behaviour can fairly be stigmatised as cruel or abusive.
100 It is not necessary todeal
with any argument that such parental behaviour might constitute an interference with a
child's
liberty or contravene his "human rights". No such absurdity was advanced. What however
does
arise for
decision
is whether what I have
described
as normal family life goes anywhere near what the local authority is empowered to
do
by a secure accommodation order.
101 Bydefinition,
the making of the order means that if accommodation less than adequate for the purpose of
restricting
liberty is provided, the
child
is likely to suffer significant harm because there is a history and continuing risk of absconding with a likelihood of significant harm or injury to himself or others. This means that he
requires
far more supervision and attention than any normal parent could
reasonably
provide or be expected to provide, and in accommodation which none of them have, that is accommodation provided for the very purpose of
restricting
a
child's
freedom. This is miles away from "grounding" a teenager, or ensuring that a group of teenagers at a boarding school are all back within school bounds by a certain time each evening, or any other manifestation of normal parental control. If the
restrictions
necessarily imposed on K for his own safety and that of others were imposed on an ordinary boy of 15, who
did
not pose the problems
requiring
a secure accommodation order, in my view, there would be a strong case that his parents were ill-treating him. As it is the local authority have been obliged, as a "last
resort",
to seek authorisation to impose
restrictions
on the boy's liberty which would otherwise be unacceptable, whether imposed by his parents or anyone else. That, as it seems to me, is the point of the unequivocal statutory language. The purpose is to
restrict
liberty, and there would be no point in such a
restriction
or the need for it to be authorised by the court, if it were not anticipated that much more was involved than ordinary parental control. It would have been enough to leave the local authority to exercise its parental
responsibilities
under section 33(3)(a) of the
Children
Act 1989 in
relation
to care, or to provide that the local authority should exercise such parental
responsibilities
in
relation
to
children
it was looking after, or to
re-enact
section 10(2) of the
Child
Care Act 1980 in a modified form so that it would
read
something like: "A local authority shall … have the same powers and
duties
with
respect
to a person who is being looked after by it … as his parents or guardian would have … and may …
restrict
his liberty to such extent as the authority considers appropriate."
102 In short, although normal parental control over the movements of achild
may be exercised by the local authority over a
child
in its care, the implementation of a secure accommodation order
does
not
represent
normal parental control."
"I accept Mr Garnham's first and bold submission that the order …did
not breach K's article 5 rights since the
deprivation
of liberty was a necessary consequence of an exercise of parental
responsibility
for the protection and promotion of his welfare."
Earlier, however, he had expressed this view (paras 53-54):
"53 … plainly not allrestrictions
placed on the liberty of
children
constitute
deprivation.
Obviously parents have a right and a
responsibility
to
restrict
the liberty of their
children,
not only for protective and corrective purposes, but also sometimes for a punitive purpose. So acting they only risk breaching a
child's
article 5(1) rights if they exceed
reasonable
bounds. Equally parents may
delegate
that right and
responsibility
to others. Every parent who sends a
child
to a boarding school
delegates
to the head teacher and his staff. A local authority may even send a
child
to a school that provides 52-week boarding facilities. Then
restrictions
on liberty imposed by the school
do
not amount to a breach of the pupils rights under article 5(1) unless the school betrays its
responsibilities
to the family.
54 Thisreality
is, it seems, well
recognised
in European based law. As was said in Nielsen v
Denmark
… [quoting para 61]."
"I further conclude that the second (subjective) element is not satisfied. RK was placed at KCH by her parents pursuant to a s 20 agreement. They consented on her behalf in circumstances where with a mental age of about 2 years she is obviously incapable of giving her own consent and where her parents have parentalresponsibility
for her. By s 3(1) of the
Children
Act 1989 parental
responsibility
is
defined
as 'all the rights,
duties,
powers,
responsibilities
and authority which by law a parent of a
child
has in
relation
to the
child
and his property'. In my opinion, that extends to giving the necessary consent under the second element. In this
regard
I specifically follow and agree with the
decision
of the ECHR in Nielsen v
Denmark
and the minority judgment of Thorpe LJ in
Re
K."
He added (para 43):
"I further conclude that the third element is not satisfied. RK's placement at KCH is at the behest of her parents. It cannot be imputed to the State."
"14 The consensus [which emerged at the Bar] is to this effect: Thedecisions
of the European Court of Human Rights in Nielsen v
Denmark
(Application No 10929/84) (1988) 11 EHRR 175, [1988] ECHR 23 and of this court in
Re
K (A
Child)
(Secure Accommodation Order: Right to Liberty) [2001] Fam 377, [2001] 2 WLR 1141, [2001] 1 FLR 526
demonstrate
that an adult in the exercise of parental
responsibility
may impose, or may authorise others to impose,
restrictions
on the liberty of the
child.
However,
restrictions
so imposed must not in their totality amount to
deprivation
of liberty.
Deprivation
of liberty engages the Art 5 rights of the
child
and a parent may not lawfully
detain
or authorise the
deprivation
of liberty of a
child.
[15] This consensus was supported and accepted by the court."
"29 Mr Cowen, who appeared for the local authority in RK, submitted that, on furtherreflection,
the concession was wrongly made and the consensus was erroneously achieved. I am told that no authorities were cited to the Court of Appeal in support of the concession. The observations of Thorpe LJ … and in particular the passage 'a parent may not lawfully
detain
or authorise the
deprivation
of liberty of a
child'
were made obiter. With great
respect
to Thorpe LJ, I
doubt
the same correctly states the legal position. This bold statement is arguably inconsistent with the views expressed by two of the Supreme Court Justices [Lords Neuberger and Kerr] in Cheshire West …
30 The Court of Appealreferred
to the '
deprivation
of liberty of a
child'
without any qualifications to the
child's
age or maturity. It is obvious that young
children
will be under the 'complete supervision and control' of the parents and 'will not be free to leave' the family home without supervision. Such a state of affairs would certainly not amount to a
deprivation
of liberty. In the premises I
do
not consider myself to be bound by the observations made in RK."
"33 The observations of both Butler-Sloss P and Judge LJ were made and must beread
in the context of the provisions of a secure accommodation order which is
recognised
to be a
draconian
order …
34 In my judgment thedecision
in
Re
K is limited to the interpretation of s 25 of the CA 1989 and the compatibility of that statutory provision with Art 5 of the European Convention. The
references
to the ambit of parental
responsibility
were obiter …"
There is, so far as I can see, nothing objectionable in that.
"The point has been made in the course of submissions thatD
will be 16 very shortly on 23 April when a
different
approach and statutory
regime
applies. Thus once
D
is 16 years of age any
deprivation
of
D's
liberty would have to be sanctioned by the Court of Protection pursuant to the provisions of the Mental Capacity Act 2005."
Having referred
to section 131 of the Mental Health Act 1983 (see below) and section 8 of the Family Law
Reform
Act 1969, he continued (paras 38-39):
"38 These provisions are just two examples of where Parliament has chosen, in a number of areas, todraw
a
distinction
between a
child
and a young person who has yet to achieve his/her majority but who has attained the age of 16 or 17. Thus the legal authority of a parent to consent to the
detention
or treatment of a 16 or 17 year old is severely curtailed, if not
removed.
39 The threshold is attaining the age of 16. The fact that a young person is 16 minus 23days
is irrelevant as far as the effect of those provisions is concerned."
This, as will be appreciated, is in substance the issue which arises in this appeal. I shall return
to it below.
"whetherD's
parents can, in the proper exercise of parental
responsibility,
consent to his accommodation in Hospital B and thus
render
what would otherwise be a
deprivation
of liberty not a
deprivation
of liberty (ie the second limb of the test in Cheshire West is not satisfied)."
He went on to answer that question in the affirmative, distinguishing
(para 47) the circumstances of the
child
in Nielsen and those of
D.
Indeed, he said that "I have not had
regard
to the 'controversial' majority judgment in Nielsen in coming to my
decision
in this case."
"55 When considering the exercise of parentalresponsibility
in this case and whether a
decision
falls within the zone of parental
responsibility,
it is inevitable and necessary that I take into account
D's
autism and his other
diagnosed
conditions. I
do
so because they are important and fundamental factors to take into account when considering his maturity and his ability to make
decisions
about his
day-to-day
life.
56 An appropriate exercise of parentalresponsibility
in
respect
of a 5-year-old
child
will
differ
very considerably from what is or is not an appropriate exercise of parental
responsibility
in
respect
of a 15-year-old young person.
57 Thedecisions
which might be said to come within the zone of parental
responsibility
for a 15-year old who
did
not suffer from the conditions with which
D
has been
diagnosed
will be of a wholly
different
order from those
decisions
which have to be taken by parents whose 15-year-old son suffers with
D's
![]()
disabilities.
Thus a
decision
to keep such a 15-year-old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental
responsibility
and would probably amount to ill-treatment. The
decision
to keep an autistic 15-year-old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite
different
matter; to
do
otherwise would be neglectful. In such a case I consider the
decision
to keep this young person under constant supervision and control is the proper exercise of parental
responsibility.
58 The parents of this young man are makingdecisions,
of which he is incapable, in the welfare best interests of their son. It is necessary for them to
do
so to protect him and to provide him with the help and support he needs.
59 I acknowledge thatD
is not now cared for at home nor 'in a home setting'. His
regime
of care and treatment was advised by his treating clinicians and supported by his parents. They wanted to secure the best treatment support and help for their son. They have
done
so. It has proved extremely beneficial for
D
who is now
ready
to move to a new
residential
home out of a hospital setting. What other loving and caring parent would have
done
otherwise?
60 Those arrangements are and were made on the advice of the treating clinicians. All professionals involved in his life and inreviewing
his care and treatment are agreed that these arrangements are overwhelmingly in
D's
best interests. On the facts of this case, why on public policy or human rights grounds should these parents be
denied
the ability to secure the best medical treatment and care for their son? Why should the state interfere in these parents' role to make informed
decisions
about their son's care and living arrangements?
61 I can see noreasons
or justifications for
denying
the parents that role or permitting the state to interfere in
D's
life or that of his family.
62 I accept the position might well be verydifferent
if the parents were acting contrary to medical advice or having consented to his placement at Hospital B, they simply abandoned him or took no interest or involvement in his life thereafter.
63 The position could not be moredifferent
here.
D's
parents have
regular
phone calls with him. They
regularly
visit him at the unit. Every weekend
D
has supported visits to the family home. He greatly enjoys spending time at home with his parents and his younger brother.
64 In my judgment, on the facts of this case, it would be whollydisproportionate,
and fly in the face of common sense, to rule that the
decision
of the parents to place
D
at Hospital B was not well within the zone of parental
responsibility."
"26Do
the same considerations apply when a
child
is accommodated by a local authority pursuant to section 20 of the
Children
Act 1989? The only possible answer is they may
do.
It will all
depend
on the facts of the individual case. At one extreme, an agreed
reception
into care of a
child,
that is beneficial and for a short-lived period, where the parent and the local authority are working together co-operatively in the best interests of the
child,
may be an appropriate exercise of parental
responsibility.
Thus it would be appropriate for that parent to consent to the
child
![]()
residing
in a place (for example, a hospital) for a period and in circumstances which amount to a
deprivation
of liberty.
27 At the other extreme, there will be cases wherechildren
have been
removed
from their parents' care pursuant to a section 20 agreement as a prelude to the issue of care proceedings and where the local authority contend the threshold criteria of section 31(2) of the
Children
Act 1989 are satisfied. In such an event, I find it
difficult
to conceive of a set of circumstances where it could properly be said that a parent's consent to what, otherwise, would amount to a
deprivation
of liberty, would fall within the zone of parental
responsibility
of that parent. This parent's past exercise of parental
responsibility
will, perforce of circumstances, have been seriously called into question and it would not be right or appropriate within the spirit of the conclusion of the Supreme Court in [Cheshire West] to permit such a parent to so consent.
28 Where achild
or young person is in the care of a local authority and is subject to interim or care orders, the
reasoning
in para 27 applies with even greater force, especially when one considers the effect of an interim care order, which includes the power of the local authority to
restrict
"the extent to which … a parent … may meet his parental
responsibility
for" the
child:
section 33(3)(b)
Children
Act 1989, as amended by section 139 of and paragraph 63(a) of Schedule 3 to the Adoption and
Children
Act 2002."
"Where achild
is in the care of a local authority and subject to an interim care, or a care, order, may the local authority in the exercise of its statutory parental
responsibility
(see section 33(3)(a) of the
Children
Act 1989) consent to what would otherwise amount to a
deprivation
of liberty? The answer, in my judgment, is an emphatic "No". In taking a
child
into care and instituting care proceedings, the local authority is acting as an organ of the state …"[10]
He went on (para 36):
"When the court makes a care order it hands over control of thechild
to the local authority such an authorisation would not, and could not, afford the necessary
degree
of safeguards and periodic, independent checks
required
by the provisions of article 5 of the European Convention. For these purposes, the local authority
child
care
review,
chaired by an independent
reviewing
officer, would not, in my judgment, afford the
required
safeguards and checks, sufficiently independent of the state."
Storck component (b): Keehan J's judgment in the present case
"These last three cases arerelied
on by the Official Solicitor to make two important points: (a) these are the only cases where the European Court of Human Rights has alluded to the concept of substituted consent; (b) it is implicit, if not explicit, from the quoted passages above that the court in each of those considered Nielsen in terms of the objective first limb of the Storck test before then turning to consider the subjective second limb of Storck, namely a valid consent. In this latter context no
reference
is made to Nielsen."
He went on (para 55):
"It is submitted that the European Court of Human Rightsdid
not in Stanev or Atudorei, nor in any other
reported
![]()
decision,
![]()
determine
whether a "surrogate"
decision-maker
(eg an appointed personal
representative)
could give a valid consent to the confinement of an incapacitous person which, absent that consent, would amount to a
deprivation
of liberty. Indeed in Stankov … the European Court of Human Rights
reached
the opposite conclusion, namely that a legal guardian could not consent to her adult son's confinement in a social care home."
No doubt,
but it is to be noted that each of these cases involved an adult, not a
child.
"63 The Official Solicitor's primary position is that a parent cannot consent to a confinement of theirchild
in circumstances which would amount to a
deprivation
of liberty. If I am not persuaded by that submission, his secondary position is that there is an important
distinction
to be
drawn
between
children
and young people who are aged 15 and younger and those young people who are aged 16 and 17.
64 In support of this submission herefers
me to a number of statutory provisions which
draw
a
distinction
between those who have attained the age of 16 and 17, but have not yet achieved their majority, and
children
and younger people. Thus: (a) section 131 of the Mental Health Act 1983 provides that a capacitous patient aged 16 or 17 years of age may consent or not consent, as the case may be, to the making of arrangements including admission to a hospital for treatment for a mental
disorder;
(b) section 8 of the Family Law
Reform
Act 1969 provides that a minor who has attained the age of 16 years may give consent to any surgical, medical or
dental
treatment which shall be as effective as it would be if he were of full age; (c) section 9(6) of the
Children
Act 1989 provides that no court may make a section 8 order which is to have effect for a period which will end after the
child
has
reached
the age of 16 unless it is satisfied that the circumstances of the case are exceptional; (
d)
section 20(11) of the 1989 Act provides that a 16- or 17-year-old young person may consent to his or her accommodation by a local authority; (e) section 31(3) of the 1989 Act provides that a care order or a supervision order may not be made in
respect
of a
child
who has
reached
the age of 17 (or 16 in
respect
of a
child
who is married); (f) section 2(5) of Mental Capacity Act 2005 provides that the powers under the Act are exercisable in
respect
of a person who has achieved the age of 16 years but not those who are under the age of 16 (this is subject to exceptions, immaterial for present purposes, eg the Court of Protection can exercise powers over a
child
of 15 or below in
relation
to their property and affairs where the court considers it likely that the material incapacity will continue past their majority: section 18)."
"there is clear authority, European anddomestic,
to support the propositions that: (a) a parent may in the exercise of their parental
responsibility
consent to the confinement of their
child,
such a consent falling within the "zone of parental
responsibility";
and (b) substituted consent may be given for the confinement of a patient by an individual authorised to act on their behalf";
and that (para 75) his decision
in In
re
D
was correct.
"The local authority seeks to persuade me that it is within the zone of parentalresponsibility
for parents of a 16- or 17-year-old
child
who lacks capacity, to consent to his confinement."
In support of that proposition, Mr Cowen had relied
on Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC112, In
re
W (A Minor) (Medical Treatment: Court's Jurisdiction) [1993] Fam 64 and Hewer v Bryant [1970] 1 QB 357.
"the issue is not whether a parent can give consent inrespect
of their
child
but rather what is the extent of the zone or scope of parental
responsibility.
On the facts of this case, and especially in light of
D's
lack of capacity to consent in his own right, … his parents may and
did
consent to his confinement at Placement B."
Storck component (b): Keehan J's judgment – analysis and discussion
"98 … Iremain
satisfied that my analysis of the legal and factual position in that case … is correct …
99 In light of the further argument which Iread
and heard in this case I am fortified in my conclusion … that the assertion of Thorpe LJ, in RK v BCC [2012] COPLR 146 that "a parent may not lawfully obtain or authorise the
deprivation
of liberty of a
child"
is not supported by the
decision
in Nielsen nor in any other European Court of Human Rights
decision.
There is no support for that proposition in any
domestic
authority save and except for perhaps In
re
K (A
Child)
(Secure Accommodation Order Rights to Liberty) [2001] Fam 377. I
do
not consider that to be either a binding or
relevant
![]()
decision."
"103 … I am entirely persuaded that Parliament has on numerous occasions, as adumbrated in para 64 …, chosen todistinguish
the legal status of those who have not attained the age of 16 years, those aged 16 and 17 and, finally, those who have attained their majority.
104 I am particularly persuaded by the fact that Parliament chose to include incapacitous 16 and 17-year-olds within theremit
of the Mental Capacity Act 2005. An incapacitous young person under the age of 16 years is specifically excluded from the provisions of the Act: see section 2(5) (subject to the exceptions
referred
to in para 64(f) …).
105 In the premises, and whilst acknowledging that parents still have parentalresponsibility
for their 16- and 17-year-old
children,
I accept that the various international Conventions and statutory provisions
referred
to, the United Nations Convention on the Rights of the
Child
and the Human Rights Act 1998,
recognise
the need for a greater
degree
of
respect
for the autonomy of all young people but most especially for those who have attained the age of 16 and 17 years. Accordingly, I have come to the clear conclusion that however close the parents are to their
child
and however co-operative they are with treating clinicians, the parent of a 16- or 17-year old young person may not consent to their confinement which, absent a valid consent, would amount to a
deprivation
of that young person's liberty.
106 Ido
not
regard
such a
distinction
to be arbitrary. Parliament has chosen to
draw
that
distinction
on a number of occasions for good and proper
reasons.
113 The position is … quitedifferent
once a young person attains the age of 16 … Parliament has
drawn
a
distinction
between these young people and those
children
who are under the age of 16. This
distinction
is not based on an explicit precondition of having a capacity to consent.
115 I am satisfied that young people of 16 or 17 years are entitled to the full protection of their article 5.1 Convention rights irrespective of their capacity to consent to their treatment or their living arrangements. In the premises Ireject
the submissions made on behalf of the local authority that the parent of an incapacitous 16-year-old may consent to their confinement, which would otherwise amount to a
deprivation
of liberty, because that young person is unable to consent to the same."
"Parliament has on numerous occasions … chosen todistinguish
the legal status of those who have not attained the age of 16 years, those aged 16 and 17 and, finally, those who have attained their majority."
No doubt,
but, I ask rhetorically, "where
does
that take us?" given the
rejection
by the House of Lords in Gillick of this court's
reliance
in the same case on what was essentially the same line of thought.
"108 InRe
![]()
D,
when considering whether the first limb of Storck 43 EHRR 6 was satisfied, I applied a completely objective test in which
D's
![]()
disabilities
were of no consideration at all. When considering the second limb of Storck and the zone and scope of parental
responsibility
there were a wide number of factors to be considered. The age and maturity of a
child
or young person are very important factors when considering the extent of parental
responsibility
… A further important factor is the extent to which, if at all, a
child
or young person has the ability and capacity to make
decisions
for themselves …
109 Thus,D's
![]()
diagnosed
conditions were a very material factor in
determining
which
decisions
fall within the zone or scope of parental
responsibility.
![]()
D's
limited ability to make
decisions
on his own behalf was a material factor in
determining
the scope or zone of parental
responsibility."
"124 Baroness HaleDPSC
in [Cheshire West] emphasised that all people, including those with
disabilities,
are entitled to the protection of the European Convention and in particular to that afforded by article 5. If I were to accede to [the local authority's] submission I would be wrongly
discriminating
against
D
on the grounds of his
disability.
When considering the second limb of the Storck test, namely the issue of consent, it would be wholly wrong not to
recognise
the special status accorded by Parliament to 16- and 17-year-old people in
D's
case. It would be wholly inappropriate not to
do
so on the grounds that by
reason
of his
disabilities
he cannot consent. I am satisfied, precisely because of his
disabilities
and vulnerability, that it is vital that
D
is accorded the same status as a 16-year old without any
disabilities
and to afford him the full protection of article 5.
125 Idraw
a
distinction
between my approach to the issue in this case and my consideration of
D's
![]()
disabilities
in
Re
![]()
D
[2016] 1 FLR 142. In the later case I was concerned with the scope or zone of the exercise of parental
responsibility
of
D's
parents. In my judgment
D's
![]()
disabilities
were an important, indeed essential, factor in
determining
what was a proper exercise of parental
responsibility
by these parents for this
child."
"108 … The age and maturity of achild
or young person are very important factors when considering the extent of parental
responsibility
… A further important factor is the extent to which, if at all, a
child
or young person has the ability and capacity to make
decisions
for themselves …
109 Thus,D's
![]()
diagnosed
conditions were a very material factor in
determining
which
decisions
fall within the zone or scope of parental
responsibility.
![]()
D's
limited ability to make
decisions
on his own behalf was a material factor in
determining
the scope or zone of parental
responsibility."
His reasoning
in
relation
to the 16-year old
D,
in contrast, was this (paras 124-125):
"124 … it would be wholly wrong not torecognise
the special status accorded by Parliament to 16- and 17-year-old people in
D's
case. It would be wholly inappropriate not to
do
so on the grounds that by
reason
of his
disabilities
he cannot consent. I am satisfied, precisely because of his
disabilities
and vulnerability, that it is vital that
D
is accorded the same status as a 16-year old without any
disabilities
and to afford him the full protection of article 5.
125 Idraw
a
distinction
between my approach to the issue in this case and my consideration of
D's
![]()
disabilities
in
Re
![]()
D
[2016] 1 FLR 142. In the later case I was concerned with the scope or zone of the exercise of parental
responsibility
of
D's
parents. In my judgment
D's
![]()
disabilities
were an important, indeed essential, factor in
determining
what was a proper exercise of parental
responsibility
by these parents for this
child."
"States Parties undertake to ensure thechild
such protection and care as is necessary for his or her well-being, taking into account the rights and
duties
of his or her parents, legal guardians, or other individuals legally
responsible
for him or her, and, to this end, shall take all appropriate legislative and administrative measures."
Article 5 provides as follows:
"States Parties shallrespect
the
responsibilities,
rights and
duties
of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally
responsible
for the
child,
to provide, in a manner consistent with the evolving capacities of the
child,
appropriate
direction
and guidance in the exercise by the
child
of the rights
recognized
in the present Convention."
Article 12(1) requires
the views of the
child
to be "given
due
weight in accordance with the age and maturity of the
child."
Article 18(1) provides that:
"States Parties shall use their best efforts to ensurerecognition
of the principle that both parents have common
responsibilities
for the upbringing and
development
of the
child.
Parents or, as the case may be, legal guardians, have the primary
responsibility
for the upbringing and
development
of the
child.
The best interests of the
child
will be their basic concern."
Article 23 provides, so far as material for present purposes, that:
"1. States Partiesrecognize
that a mentally or physically
disabled
![]()
child
should enjoy a full and
decent
life, in conditions which ensure
dignity,
promote self-
reliance
and facilitate the
child's
active participation in the community.
2. States Partiesrecognize
the right of the
disabled
![]()
child
to special care and shall encourage and ensure the extension, subject to available
resources,
to the eligible
child
and those
responsible
for his or her care, of assistance for which application is made and which is appropriate to the
child's
condition and to the circumstances of the parents or others caring for the
child."
Article 37, relating
to
deprivation
of liberty, provides so far as material for present purposes:
"States Parties shall ensure that:
…
(b) Nochild
shall be
deprived
of his or her liberty unlawfully or arbitrarily. The arrest,
detention
or imprisonment of a
child
shall be in conformity with the law and shall be used only as a measure of last
resort
and for the shortest appropriate period of time;
(c) Everychild
![]()
deprived
of liberty shall be treated with humanity and
respect
for the inherent
dignity
of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every
child
![]()
deprived
of liberty shall … have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances."
"The principles of the present Convention shall be:
(a)Respect
for inherent
dignity,
individual autonomy including the freedom to make one's own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society;
(d)
![]()
Respect
for
difference
and acceptance of persons with
disabilities
as part of human
diversity
and humanity;
…
(h)Respect
for the evolving capacities of
children
with
disabilities
and
respect
for the right of
children
with
disabilities
to preserve their identities."
Article 4(1) provides that:
"States Parties undertake to ensure and promote the fullrealization
of all human rights and fundamental freedoms for all persons with
disabilities
without
discrimination
of any kind on the basis of
disability."
Article 7, which as Ms Butler-Cole observes closely reflects
the provisions of the CRC, provides that:
"1. States Parties shall take all necessary measures to ensure the full enjoyment bychildren
with
disabilities
of all human rights and fundamental freedoms on an equal basis with other
children.
2. In all actions concerningchildren
with
disabilities,
the best interests of the
child
shall be a primary consideration.
3. States Parties shall ensure thatchildren
with
disabilities
have the right to express their views freely on all matters affecting them, their views being given
due
weight in accordance with their age and maturity, on an equal basis with other
children,
and to be provided with
disability
and age-appropriate assistance to
realize
that right."
The reference
in Article 7(3) to the
child's
"age and maturity" will be noted. Article 14 provides as follows:
"1. States Parties shall ensure that persons withdisabilities,
on an equal basis with others:
(a) Enjoy the right to liberty and security of person;
(b) Are notdeprived
of their liberty unlawfully or arbitrarily, and that any
deprivation
of liberty is in conformity with the law, and that the existence of a
disability
shall in no case justify a
deprivation
of liberty.
2. States Parties shall ensure that if persons withdisabilities
are
deprived
of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of
reasonable
accommodation."
"If parentalresponsibility
includes a power to give valid consent to an objective
deprivation
of liberty that is imputable to the State, but only in
respect
of mentally
disordered
or
disabled
young people (or only such young people who are not Gillick competent), that would violate Article 14 EHCR
read
with Article 5 and/or Article 8, as well as the provisions of the CRPD and CRC."
"there is no consideration in either judgment of: (a) the categories of personalrepresentatives
who may give a substituted consent; (b) the circumstances or conditions in which a valid "substituted" consent may be given; or (c) the limits or extent of a substituted consent."
"the "consent" is to thechild
being accommodated. It cannot be inferred that that consent means that those with parental
responsibility
have consented to whatever placement the local authority considers, from time to time, appropriate."
Conclusion
Lord Justice David
Richards :
Lord Justice Irwin
"…the starting point [should be] our own legal principles rather than the judgments of the international court."
And by so approaching the matter, the rights formulated under the European Convention should not, as Lord Rodger put it in HM Advocate v Montgomery 2000 JC 111, 117, form "a wholly separate stream in our law; in truth they seek thorough and permeate the areas of our law in which they apply."
Note 1 In Birmingham City Council v Note 2 I should make clear that the Official Solicitor had not been involved in the earlier proceedings, Note 3 I note with weary Note 4 For what it is worth it may be useful to Note 5 The Official Solicitor submits that Baroness Hale was here merely summarising a submission by counsel and not expressing her own view. I Note 6 At that time, an “infant” was anyone who had not attained the age of majority, at that time 21 years of age. [Back] Note 7 This was a Note 8 So the concern of the court was now with statutory “parental Note 9 I Note 10 Keehan J Note 11 As the Official Solicitor helpfully points out, to these authorities there now needs to be added the more D
[2016] EWCOP 8, [2016] PTSR 1129, para 8 (see likewise para 102), Keehan J said of this: “I should have expressed myself more precisely and felicitously by
referring
to
D’s
“confinement” at Hospital B (ie the first limb ofStorck) rather using the phrase a “
deprivation
of liberty” which, of course only arises if all three limbs of Storck are satisfied.” [Back]
D
at that time having been
represented
by Cafcass. [Back]
resignation,
although the
responsibility
for this appears to be that of the court rather than the parties, that this order, as so many others, was headed “In the High Court of Justice Court of Protection”. The Court of Protection is not part of the High Court, so orders made by the Court of Protection should not be headed “In the High Court of Justice”: see section 45 of the 2005 Act. Is it too much to hope that, ten years after the Court of Protection came into being, this simple truth might be more widely understood and more generally given effect to. [Back]
refer
to what I said on the point in JE v
DE
[2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, para 30: “… it is
revealing
that both the argument of the Government of
Denmark
(at para 71) and the judgment of the court (at paras 64, 69, 72 and 73) laid emphasis upon the fact that what was being
done
to the applicant was being
done
at the behest of his mother and in what the Government asserted and the court accepted was the
responsible
exercise of her parental rights. Indeed, what seems to have
divided
the majority and the minority … was the question of whether the applicant’s mother was acting properly in the normal exercise of her parental authority or in abuse of her authority. In these circumstances it seems to me that, properly understood, Nielsen v
Denmark
is a case about the proper ambit of parental authority, albeit that it concerned a
child
placed in a psychiatric institution.” I went on, para 33: “… in HL v United Kingdom (2004) 40 EHRR 761, at para 93, … the court explained its
decision
in Nielsen v
Denmark
as follows: ‘That case turned on the specific fact that the mother had committed the applicant minor to an institution in the exercise of her parental rights, pursuant to which rights she could have
removed
the applicant from the hospital at any time.’ That, as I
read
it, is an authoritative pronouncement by the Strasbourg court itself as to the true basis of the
decision
inNielsen v
Denmark.”
This accords with Baroness Hale’s analysis inCheshire West. [Back]
do
not agree. [Back]
reference
to the Abduction Act 1557. [Back]
responsibility”,
as
defined
by section 3, rather than with common law “custody”. [Back]
refer
to this case only for the sake of completeness. It concerned a 15 year old boy who Keehan J found was ‘Gillick’ competent. He was subject to a
regime
at a
residential
unit which Keehan J found amounted to confinement within limb (1) of Storck but was, as Keehan J found, capable of consenting and in fact consenting for the purposes of limb (2) ofStorck. It
does
not assist us here. [Back]
repeated
the point in Birmingham City Council v
D
[2016] EWCOP 8, [2016] PTSR 1129, paras 35, 101. [Back]
recent
decision
in Cervenka v The Czech
Republic (Application No 62507/12, unreported, 13 October 2016. [Back]