Article 5 of the European Convention on Human Rights, which has been incorporated into English law under the Human Rights Act 1998, states that everyone has the right to liberty and can only be deprived of this in limited circumstances and subject to strict legal procedures. Not having arbitrary restrictions placed on your movement is a key part of everyone’s right to liberty. Restrictions can only be put in place for one of a limited number of lawful reasons (i.e. reasons set out in law) and, even then, safeguards must be in place to review the deprivation of liberty.
This legal digest looks at a landmark Supreme Court judgment – D (A Child) – that forms a key part of the legal framework for determining whether a deprivation of a child’s liberty has taken place and whether safeguards are being followed.
This judgment will be of relevance to all advocates, both those who support children living in institutional settings and those in other arrangements, for instance foster care, as it is the types of restrictions and not the type of setting that determine whether a child is deprived of their liberty.
The Supreme Court considered whether those with parental responsibility for a 16 or 17-year-old can consent to living arrangements for them which would otherwise amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR), in particular when the child lacks the mental capacity to consent themselves. It examined the interplay between the liberty of a child and the responsibilities of parents/those with parental responsibility, and between the rights protected by Article 5 and the rights and values protected by Article 8 (the right to respect for private and family life).
D had been diagnosed with ADHD, Asperger’s and Tourette’s syndrome and at the age of 14 was admitted to a hospital which provided mental health services for children. He lived at the hospital and attended school there. The external door was locked, and D was checked by staff every half an hour. In 2014, the Hospital Trust applied to the High Court for a declaration that it was lawful for the Trust to deprive D of his liberty and that this was in his best interests. The High Court determined that D’s living conditions amounted to a deprivation of his liberty under Article 5 of the ECHR, but that it was within the scope of parental responsibility for his parents to consent to this while D was under 16.
With his parents’ agreement, and with Birmingham City Council accommodating him under Section 20 of the Children Act 1989, D was moved to a residential care setting, where he was still under constant supervision and not allowed to leave the premises except for a planned activity. On D’s 16th birthday, proceedings were issued in the Court of Protection, with the council seeking a declaration that D would not be deprived of his liberty in his new home. The Court of Protection (CoP) held that, now that D had reached the age of 16, his parents could no longer consent to what would otherwise be a deprivation of liberty and the provisions of the Mental Capacity Act 2005 (MCA) applied because D had reached the age of 16. However, the arrangements in the new place where D was living, and a subsequent transfer to another similar setting, were authorised as being in D’s best interests by the CoP.
Birmingham City Council then appealed to the Court of Appeal, which disagreed with the earlier decision of the CoP and held that parents could consent to what would otherwise be a deprivation of liberty of a 16 or 17-year-old child who lacked the capacity to decide for himself (as part of their exercise of parental responsibility over D), and the MCA had no bearing on this.
The case then reached the Supreme Court. In its judgment, the Supreme Court reiterated the three conditions that the European Court of Human Rights has set out for a deprivation of liberty to occur under Article 5 of the ECHR:
1) the person is confined;
2) there was no valid consent to the confinement; and
3) the state is responsible for the confinement.
Is the person confined?
A person will be deprived of their liberty if, as outlined in the ‘acid test’ in the Supreme Court ‘Cheshire West’ case, “they are under continuous supervision and control and not free to leave”. The fact that such restrictions may be necessary in order to prevent a person from harming themselves or others does not change this. Nor does the fact that the person’s living arrangements are as close to a normal home life as they could possibly be.
When applying this test to a child, it must be decided whether the restrictions fall “within normal parental control” for a child of this age or not. For example, the constant supervision of a 10 year-old child may be unlikely to amount to a confinement whereas for a 13 year-old it might. If the restrictions go beyond “normal parental control”, Article 5 ECHR will apply (subject to the question of whether there is valid parental consent – see point 2 of the criteria above).
In the D (A Child) judgment, Lady Hale, one of the Supreme Court justices, emphasised that the degree of supervision and control to which D was subject while in his second and third residential settings were not normal for a child of 16 or 17 years old. In Cheshire West, the Supreme Court had made clear that human rights are universal and “people with disabilities, both mental and physical, have the same human rights as the rest of the human race”. Therefore, in D, “it follows that a mentally disabled child who is subject to a level of control beyond that which is normal for a child of his age has been confined within the meaning of Article 5”.
Is the state responsible for the confinement?
Human rights are about the relationship between private persons and the state, and all agreed that not only was the state actively involved in making and funding the arrangements, it had assumed statutory responsibilities towards D by accommodating him under Section 20 of the Children Act 1989.
The Supreme Court also made clear that even where a person’s liberty is interfered with by a private individual, Article 5 still imposes a positive obligation on the state to protect a person from this “if it knew or ought to have known of this”.
Is there valid consent for the confinement?
The Supreme Court held that it is not within the scope of parental responsibility for a parent to consent to the deprivation of liberty of a 16 or 17 year-old child on their behalf if they lack the capacity to consent themselves. Therefore, safeguards must be in place to ensure that the deprivation of liberty is lawful.
In this case, the safeguard for D was that the Court of Protection examined his circumstances.
(In the future, it will be possible to authorise the deprivation of liberty of children aged 16 and 17 years, as well as adults, who lack mental capacity to consent to arrangements that would otherwise amount to deprivation of liberty under a new scheme called Liberty Protection Safeguards. This is expected to come into force in 2022 as part of the Mental Capacity (Amendment) Act 2019. Until then, deprivation of liberty of persons aged 16 and over has to be authorised by the Court of Protection).
What does this mean for younger children?
While Lady Hale, one the Supreme Court justices, stated that “logically, this conclusion would also apply to a younger child whose liberty was restricted to an extent which was not normal for a child of his age”, the Supreme Court did not make a finding relating to the position of children aged under 16. However, this case would suggest that a cautious approach should be taken if relying on parental consent to any arrangements which amount to deprivation of liberty of those under the age of 16, particularly those closer to that age.
The full judgment can be read at https://www.supremecourt.uk/cases/uksc-2018-0064.html
Determining whether a person is deprived of their liberty
To be considered a ‘deprivation of liberty’, triggering the responsibilities and obligations under Article 5 of the European Convention on Human Rights, three elements need to be satisfied:
1) The person is confined for a “not negligible length of time” (so called ‘objective element’)
2) There is no valid consent for the confinement (so called ‘subjective element’)
3) The state is responsible for the confinement (state involvement)
If these three elements are met and there is a deprivation of liberty, then a legal procedure is required to authorise the deprivation of liberty, and appropriate safeguards must be in place. For example, deprivation of liberty can be authorised by the Court of Protection or by the High Court using its inherent jurisdiction*. Or a child might be formally detained under the Mental Health Act 1983, with safeguards in place such as the right to information on their rights, access to advocacy and the right to appeal their detention. Section 25 of the Children Act 1989 (and its accompanying safeguards set out in regulations) is another route through which children can be detained for welfare reasons.
* You can read more about inherent jurisdiction in our August 2020 legal digest