Mental health law briefing 245 – Teen Bournewood: All change
Deprivation of Liberty for Young Persons (16 and 17 year olds) and Parental Consent
The Court of Appeal considered whether a 16 year old boy’s parents could authorise the young person’s deprivation of liberty at a residential community placement in In Re D (A Child) 2017 EWCA Civ 1695 (31 October 2017).
The Court overturned the previous decision of Mr Justice Keehan that a parent cannot consent for a young person who lacks ‘Gillick’ competence and confirmed that the scope of parental responsibility is dependent on the particular circumstances and individuals.
Facts of the case
D was born in 1999 and was diagnosed with ADHD, Asperger’s and Tourette’s syndrome and a mild learning disability. He had significant issues with social interactions and displayed challenging and paranoid behaviour including aggression.
He was admitted to a CAMHS hospital aged 14 and his situation amounted to confinement. He was assessed as not being ‘Gillick’ competent. When he turned 16, he was placed in a specialist residential placement funded by Birmingham Council under the provisions of section 20 of the Children Act 1989.
Court of Protection
The case was first heard in 2015. In Re D (A Child) (Deprivation of Liberty)  EWHC 922 (Fam), Mr Justice Keehan considered whether the boy, who was then 15 years old, was lawfully deprived of his liberty and whether consent for such deprivation fell within the scope of parental responsibility (then referred to as the zone of parental responsibility). The Court held that the placement was a deprivation but this was not unlawful as the parents were able to consent to the placement.
In 2016, the boy turned 16 and the Local Authority applied to the Court of Protection. In Birmingham City Council v D  EWCOP 8, the Court again had to consider, amongst other things, whether his parents could consent to his confinement. The Official Solicitor on behalf of D disagreed that the parents could give consent and that the placement arrangements were not imputable to the State.
Mr Justice Keehan referred to the special status accorded by Parliament to 16 and 17 year olds and was satisfied that D should be accorded the same status as a 16 year old without any disabilities to afford him the full protection of Article 5 ECHR. In such case, an application to the Court of Protection for authorisation pursuant to the provisions of the Mental Capacity Act 2005 would be required.
Mr Justice Keehan further rejected the Local Authority’s argument that this would create enormous resource implications and concluded (Para 137):
‘The issue of the resource 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.’
Court of Appeal
Birmingham City Council launched an appeal on three grounds:
- Mr Justice Keehan was wrong to suggest that parents cannot give consent for a deprivation of liberty for 16 and 17 year olds
- The Judge was wrong to suggest the State was imputable
- He was wrong to find there was a deprivation of liberty given the arrangements were appropriately monitored
The Appeal was heard on 8 and 9 February by the President of the Court of Protection Sir James Munby, Lord Justice Richards and Lord Justice Irwin sitting in the Court of Appeal.
The Appeal was unsuccessful on points 2 and 3, but was allowed on point 1.
Sir James Munby concluded that parental responsibility is still exercisable when a 16 or 17 year old lacks ‘Gillick’ competency.
- The case contains exploration of the ‘Storck test’ and the three components which must be present to amount to deprivation of liberty for the purpose of Article 5:
- The objective component (‘confinement’)
- The subjective component (lack of consent)
- Imputability to the State
- The Equality and Human Rights Commission took part in the appeal. Its submissions as to discrimination with regard to the UN Convention on the Rights of Persons with Disabilities (UNCRPD) and those of the Official Solicitor as to breach of ss 13 and 15 Equality Act 2010 were rejected.
- Sir James Munby referred to improper emphasis on the Mental Capacity Act 2005 which he said ‘does not make specific provision in relation to those aged 16 or 17.’
- Local Authorities will have to consider the circumstances of each case carefully as to whether consent is an appropriate exercise of parental responsibility and keep this under close review.
- The case provides welcome clarification but is likely to be taken to the Supreme Court for further challenge.
For more information, please contact:
T. 020 7227 6758
- Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security AC 112
- Storck v Germany (2005) 43 EHRR 96
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.