Jonathan Cowen & Eleanor Sibley successful in appeal to the Court of Appeal on the question of whether parental consent has any role to play in deprivation of liberty applications concerning 16-17 year olds

31 October 2017

Jonathan Cowen and Eleanor Sibley successfully represented Birmingham City Council in the Court of Appeal in an appeal against a decision of the Court of Protection that a 16 year old disabled child (D), who lacked capacity to make decisions about his residence and care, was deprived of his liberty in a residential placement in circumstances where D’s parents had agreed to D being so placed.

The Court of Appeal’s judgment primarily focused on whether a parent can, as a matter of law, consent to arrangements for a child who has attained the age of 16 which would otherwise amount to a deprivation of liberty i.e. one which meets the objective criteria explored in Cheshire West, and the requirement for state involvement. The judge who decided the case in the Court of Protection had previous decided, in relation to D when he was aged 15, that his parents could lawfully consent to what would otherwise be a deprivation of liberty. However, when D turned 16, the judge decided that the legal position had changed and his parents could no longer provide lawful consent to what would otherwise be a deprivation of liberty.

The Court of Appeal, however, disagreed with this approach. Sir James Munby, the President of the Court of Protection, giving the leading judgment of the Court, with which Irwin LJ and Richards LJ agreed, considered that no such ‘bright line’ between those under 16 and those aged 16-17 could properly be drawn in this context. Analysing in detail the relevant domestic law and the cases determined by the European Court of Human Rights (ECtHR), and in particular the case of Nielsen, the President considered that a proper analysis required, as a first step, the identification of what the relevant “rights of the holder of parental authority” are. The content of those rights are a matter to be determined by the relevant domestic law, and by the general standards expected in society in the UK at the time of determination.

Looking at precedent and where societal expectations currently stood, the President concluded that the ability of a child to make decisions was not to be determined simply by reference to a chronological age, but to the relative maturity and understanding of the child in question. This was a matter which necessarily needed to be considered on a child-specific basis. It was not correct, therefore, to consider that at 16 a child’s parents could no longer consent to what would otherwise be a deprivation of liberty simply on the basis of his chorological age. Whether his parents could consent depended on whether that particular child had ‘Gillick capacity’ to consent, ‘Gillick capacity’ being the long-established concept governing the ability of children and young people to make their own decisions and derived from a case of the same name.

For a child to have ‘Gillick capacity’, he/she had to be of sufficient understanding and intelligence to understand fully the decision being proposed to be taken. In the Court’s view, children could attain ‘Gillick capacity’ either before or after the age of 16, the age of 16 itself provided no clear defining line between those children who had capacity and those who did not. Thus, the President concluded, the parents were capable of consenting on behalf of their child to what would otherwise be a deprivation of liberty if and where their child did not have ‘Gillick capacity’. The President went on to find that this position was consistent with international instruments, and did not amount to discrimination in any respect. The result of the appeal in D’s case was that D’s parents could consent to what would otherwise have been a deprivation of D’s liberty, as D lacked Gillick capacity, and they had lawfully consented in this case.