Parental Consent Insufficient to Authorize Deprivation of Liberty for 16-17 Year Olds Lacking Capacity: D (A Child) [2019] UKSC 42

Introduction

The Supreme Court case D (A Child) [2019] UKSC 42 addresses the complex interplay between parental responsibility, the rights of young persons under the European Convention on Human Rights (ECHR), and statutory frameworks governing the care and treatment of minors. The central issue revolves around whether parental consent can authorize living arrangements for a 16 or 17-year-old child, D, who lacks the mental capacity to make decisions for himself, in a manner that constitutes a deprivation of liberty under Article 5 of the ECHR.

Summary of the Judgment

The United Kingdom Supreme Court held that parental consent does not eliminate a deprivation of liberty under Article 5 for 16 and 17-year-old children who lack the capacity to consent. In D's case, although his parents consented to his placement in restricted accommodations, the court determined that this arrangement amounted to a deprivation of liberty. The judgment emphasized that parental authority cannot override the fundamental human rights protections afforded by the ECHR, particularly when it comes to the liberty and security of individuals, including minors.

Analysis

Precedents Cited

The judgment extensively references pivotal cases that have shaped the legal landscape concerning deprivation of liberty and parental responsibility:

• Cheshire West and Chester Council v P [2014] UKSC 19: Established a three-part test for determining deprivation of liberty under Article 5, focusing on the objective confinement, lack of consent, and state responsibility.
• Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112: Introduced the concept of Gillick competence, determining when a minor can consent to medical treatment without parental approval.
• Nielsen v Denmark (1988) 11 EHRR 175: Addressed whether parental consent could negate a deprivation of liberty and concluded that it could, under specific circumstances.
• Storck v Germany (1988) 43 EHRR 96: Provided the foundational framework for understanding deprivation of liberty under Article 5 of the ECHR.

These cases collectively underscore the balance between protecting individual liberties and recognizing parental authority in the upbringing and care of children.

Legal Reasoning

The Supreme Court delved deep into the nuances of parental responsibility as defined by the Children Act 1989 and the interplay with the Mental Capacity Act 2005. The court reasoned that while parents have significant authority over their minor children, this authority is not absolute and must align with the best interests and fundamental rights of the child.

Key points in the court’s reasoning included:

• Article 5 of the ECHR: Protects the right to liberty and security. Any deprivation must meet the three criteria established in Cheshire West.
• Parental Responsibility: Defined as all rights and duties parents have concerning their child. While extensive, these responsibilities do not grant parents the power to infringe upon fundamental human rights.
• Mental Capacity: The Mental Capacity Act 2005 provides a framework for decision-making for those aged 16 and over who lack capacity, ensuring their best interests are prioritized.

The court emphasized that parental consent cannot substitute for the child's own consent where the child lacks capacity, thus ensuring that the child's rights under Article 5 are upheld.

Impact

This judgment has profound implications for the future legal treatment of minors, particularly those with disabilities or lacking mental capacity:

• Enhancement of Safeguards: Reinforces the necessity for stringent safeguards when depriving minors of their liberty, ensuring that such actions are lawful and in the child’s best interests.
• Clarification of Parental Authority: Limits the scope of parental responsibility, ensuring it does not override fundamental human rights protections.
• Legislative Developments: Aligns with ongoing legislative changes, such as the Mental Capacity (Amendment) Act 2019, which extends deprivation of liberty safeguards to 16 and 17-year-olds.

The judgment serves as a critical reference point for future cases involving the balance between parental responsibility and individual rights of minors.

Complex Concepts Simplified

Deprivation of Liberty

Under Article 5 of the ECHR, a deprivation of liberty occurs when a person is confined in a restricted place for a significant period without valid consent. The three components to establish this are:

• Objective Component: Physical confinement in a restricted place for a non-trivial duration.
• Subjective Component: Lack of valid consent from the individual.
• Attribution to the State: The deprivation must be attributable to state authority.

Parental Responsibility

Defined by the Children Act 1989, parental responsibility encompasses all the rights and duties parents have concerning their child’s upbringing, education, and welfare. However, this responsibility does not grant parents the authority to infringe upon fundamental human rights, such as the right to liberty.

Gillick Competence

A doctrine established in Gillick v West Norfolk, determining whether a minor (typically under 16) can consent to their own medical treatment without parental approval, based on their maturity and understanding.

Children Act 1989 - Section 25

This section regulates the circumstances under which a child can be placed in accommodation designed to restrict their liberty. It requires that such placements be authorized by a court, ensuring they are in the child’s best interests and necessary for their welfare.

Conclusion

The Supreme Court's decision in D (A Child) [2019] UKSC 42 reinforces the principle that parental consent cannot override a child's fundamental rights under the ECHR, even when the child has significant disabilities and lacks mental capacity. By delineating the boundaries of parental responsibility and emphasizing the importance of lawful deprivation of liberty, the judgment ensures that the rights of minors are protected while balancing parental authority appropriately. This landmark decision sets a clear precedent for future cases, underscoring the necessity of adhering to human rights standards in all matters concerning the upbringing and care of children.