The Zone of Parental Control – Deprivation of Liberty
The High Court has recently ruled in Re D1 that a person with parental responsibility may consent to the deprivation of their child’s liberty where it falls within the ‘zone of parental control’.
The case concerns a 15-year-old boy referred to as ‘D’. He had been diagnosed with Attention Deficit Hyperactivity Disorder, Aspergers, Tourette’s and a mild Learning Disability, all of which were associated with very challenging behaviour.
D was referred by the local Child and Adolescent Mental Health Services (CAMHS) for a psychiatric in-patient assessment in 2012 and was admitted, with his parents consent, informally by his treating clinician.
D as an in-patient is constantly supervised, lacks sufficient maturity and understanding to consent to the admission himself, and is not considered by his consultant to meet the criteria for detention under the Mental Health Act 1983 (MHA).
Article 5 of the European Convention of Human Rights (ECHR) provides that nobody shall be deprived their liberty save in limited circumstances, such as the treatment of mental illness where the detention follows a procedure prescribed by law (such as assessment and detention of the MHA) and where the person is afforded speedy access to the Court to consider the lawfulness of the detention (such as the Mental Health Tribunal).
In March 2014, the Supreme Court gave some important clarity as to the definition of deprivation of liberty in the Cheshire West case2, which provides that a deprivation of liberty occurs in state organised care when a person is not free to leave, and is under continuous supervision and control.
There are three separate limbs each of which must be satisfied:
1. The objective component of confinement in a particular restricted place for not a negligible length of time
2. The subjective component of a lack of valid consent
3. The attribution of responsibility to the State
In practice children requiring medical or specialist treatment of whatever sort are routinely admitted into hospitals and specialist residential/educational settings on the basis of their parents’ consent. Often the arrangements for care will fulfil the first and third limbs of the Cheshire West deprivation of liberty test.
The question considered in this case concerned the degree to which a parent can provide a valid consent to such arrangements?
The Hospital Trust who made the application, argued that D’s parents’ consent to their child’s detention was insufficient for the purpose of Article 5 of the ECHR relying on the case of RK3 in which the Court of Appeal observed in passing that a parent could not lawfully consent to a deprivation of their child’s liberty.
The Local Authority in Re D were arguing that a decision to consent to D’s admission did fall within the zone of parental decision making and need not be authorised by the Court, relying on the Cheshire West case.
In answering this question the judge considered the conflicting judgements and determined that the comments of Baroness Hale in Cheshire West were to be preferred, quoting from paragraph 54 of that judgement as follows:
“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 being deprived 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.”
The Judge found that the circumstances of D’s hospitalisation did not amount to an unlawful deprivation of his liberty requiring authorisation in that there was a valid consent given by D’s parents.
The Judge noted that ‘the zone of parental authority’ in situations such as this was not open-ended and relative to the presenting situation. The Judge found that what is proportionate for a 5 year old is likely to be disproportionate for a 15 year old. The same is said by the Judge to apply to children affected by differing degrees of illness, in that the decision to consent to a child’s admission into medical care will be dependent upon and proportionate to their healthcare need.
This Judgement serves to clarify the interplay between Article 5 and the zone of parental control, rendering it in the main unnecessary to seek the permission of the Court or the inception of some type of statutory assessment scheme similar to the Deprivation of Liberty Safeguards but for children, when admitted in circumstances such as these.
Each case will turn on its own particular facts and the ruling will not serve to legitimise situations considered cruel or abusive, in relation to which the criminal, child safeguarding and other regulatory laws will continue to apply.
As always if there is any doubt as to the arrangements in question, advice should be sought.
1. Re D (A Child: Deprivation of Liberty)  EWHC 922 (Fam)
2. Cheshire West & Cheshire Council –v- P  UKSC19,  MHLO16
3. RK v BCC & Others  EWCA Civ 1305
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.