Birmingham City Council v D (by his litigation friend the official solicitor) & W 
Keywords: Deprivation of liberty, mental capacity, consent, 16 and 17 year olds
The case concerns D, a 16 year old with ASD, ADHD, Tourette’s and significant behavioural difficulties. D was residing in a specialist residential placement under s.20 arrangements with the local authority and with the full approval and consent of his parents. D was being cared for in a situation in which he was subject to continuous supervision and control (thus meeting the Cheshire West threshold). D had been assessed by his treating consultant as lacking Gillick competence to consent to his residence or care arrangements or to any deprivation of liberty.
In an earlier judgement regarding the same young person aged 15 (Trust A v X and A Local Authority  EWHC 922 (Fam)), Keehan J had ruled that parents can consent to the confinement of a child under 16 in circumstances which would otherwise amount to a deprivation of liberty [although it is clear that such consent would only be effective in alleviating a breach of article 5 where it is exercised benignly in the interests of the child]. Keehan J had also clarified that this does not extend to a local authority with parental responsibility for a child, by virtue of an interim care order or a care order (A Local Authority v D and others  EWHC 3125 (Fam) at paragraphs 26-29). The instant case required consideration of the position with regard to 16 (and by implication 17) year old young people.
Keehan J took particular account of the inclusion of incapacitated 16 and 17 year olds within the scope of the Mental Capacity Act 2005 and the fact that 16 and 17 year olds are accorded greater respect for their autonomy by a range of international conventions and statutory provisions. Accordingly, he took the view that, even where parents are seeking to act lovingly in the best interests of their child, parental consent is insufficient to lawfully authorise the confinement of a 16 or 17 year old in circumstances which would (in the absence of lawful authority) amount to a deprivation of liberty. Essentially, the parents of a 16 or 17 year old cannot give substituted consent on their behalf if they lack the capacity to consent themselves.
• It is settled law that parental responsibility continues up to and until a child’s 18th birthday; Gillick v West Norfolk and Wisbech Area Health Authority  AC 112. The principle that parental responsibility extends to children aged 16 or 17 was accepted by the Court of Appeal in Re W (A Minor) (Medical Treatment: Court’s Jurisdiction)  4 All ER 627 but that doesn’t mean it extends in all regards.
• “[T]he legal right of a parent to the custody of a child ends at the 18th birthday; and even up till then, it is a dwindling right which the Courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.”
• Neither Nielsen nor Re K are actual authority for the proposition set out in the final sentence in paragraph 14 of [the first] RK [case] namely, “a parent may not lawfully detain or authorise the deprivation of liberty of a child”. There is no decision of the ECtHR or domestic authority directly and explicitly on the issue of parental consent to the confinement of a child in circumstances which would otherwise amount to a deprivation of liberty and in particular asserting that a parent cannot consent to the same.
• A Local Authority v D and others sets out the limitations of the circumstances in which a parent could give a valid consent, especially where the child was accommodated by a local authority pursuant to s 20 CA 1989 or was the subject of an interim, or final care order. The possibility of parental consent, now, sanctioning objective confinement based on agreement as to best interests would have to be limited to a child under 16, now, because of this later analysis in the instant case: “I am not persuaded that a parent can consent to the confinement of a child who has attained the age of 16. Such a consent falls outside the zone or scope of parental responsibility.“
• In respect of the provisions of s8(1) FLRA 1969 and s 20 CA 1989, giving a 16 or 17 year olds rights to consent to treatment or accommodation by the local authority, the child cannot override the consent of a person with parental responsibility related to treatment or accommodation, but the implication of this case is that if a capacitated child of 16 or 17 does not agree with the s20 confinement regime, and the regime or treatment amounts to or would require objective confinement amounting to deprivation of liberty, the arrangement would have to be authorised by the court as well.
- There is thus a distinction between the positions (as in this case) of an incapacitated 16/17 y.o. where a court must authorise restrictions amounting to a DOL due to the absence of anyone (parent because parental authority is no longer enough or child because of incapacity) with the power to do so and the position (by implication) where a 16/17 y.o. has capacity to consent to their own treatment/accommodation in circumstances which would otherwise amount to a DOL (in which case they – but only they and not their parents – can do so).
• It is already decided that a local authority who had parental responsibility for a child, by virtue of an interim care order or a care order, could not consent to the confinement of a child (under 16) which would otherwise amount to a deprivation of liberty: see A Local Authority v D and others  EWHC 3125 (Fam) at paragraphs 26-29.
• Although normal parental control over the movements of a child may be exercised by the local authority over a child in its care, the implementation of a secure accommodation order under s2 of the CA does not represent normal parental control. But a secure accommodation order will have been granted after a judicial process, and hence will not be a breach of human rights.
Under 16s in any setting, capacitated or incapacitated: parental consent or inherent jurisdiction if the rightness of the regime is disputed
16+ accommodated or under a care order of a full or interim nature, in all cases other than a capacitated young person, positively consenting to the regime – in schools and OFSTED homes or supported living: Court of Protection even if parents are in agreement, or an application under the inherent jurisdiction if unsure about the child’s capacity (UNLESS authorised under s25 or the MHA)
18+ and lacking in capacity in a CQC registered care home or hospital: DoLS and ultimately an appeal in the CoP
18+ not in a care home or hospital: a Single Order application in the CoP
In either of the last two situations the person if capacitated, and confined against own wishes, habeas corpus or the inherent jurisdiction