This appeal overturns Keehan J’s decision that whilst a parent could consent to a foster care arrangement that involves a restriction of liberty for a child under 16 (which thus means that it does not require either Secure Accommodation or court authorisation), they cannot do so for a child aged 16-17 and 363 days.
Re D (A child) 2017
The Court of Appeal considered things very carefully and in huge detail. I don’t have time for the detailed analysis that the case merits, but it is an important decision, so people need to know it. The Court of Appeal felt, looking at things closely, that there was no magic in the age 16 when dealing with young people who lack capacity.
84.This has an important corollary. Given that there is no longer any ‘magic’ in the age of 16, given the principle that ‘Gillick capacity’ is ‘child-specific’, the reality is that, in any particular context, one child may have ‘Gillick capacity’ at the age of 15, while another may not have acquired ‘Gillick capacity’ at the age of 16 and another may not have acquired ‘Gillick capacity’ even by the time he or she reaches the age of 18: cf, In Re R (A Minor) (Wardship: Consent to Treatment)  Fam 11, pages 24, 26.
128.In my judgment, in the context with which we are here concerned (see paragraphs 84-85 above), parental responsibility is, in principle, exercisable in relation to a 16- or 17-year old child who, for whatever reason, lacks ‘Gillick capacity’.
Consider a dentist, who is deciding whether to treat someone who is not an adult. If a 7 year old says “I don’t want you to take my teeth out” the dentist will of course look to the parent to say yes or no, and won’t take the child’s views as being final. If a 15 year old says that, the dentist may try to encourage and persuade, but can’t really just operate against the 15 year old’s will, and nor can they just take parental consent. The 16 year old with capacity has autonomy over their own body and mouth. BUT if the parents come with a 16 year old and explain that as a result of special needs, the young person lacks capacity, the dentist would probably be able to take the parental consent as being valid. The parents are exercising parental responsibility for a young person who does not have Gillick competence to make their own decisions (even though they are of an age where most young people would be)
I’m not sure that I agree with this conclusion, and I feel that it has some issues with Lord Kerr’s formulation in Cheshire West.
“77 The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.
78 All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.
79 Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEG’s liberty was not restricted. It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.”
157.The ECHR enshrines the rights of the citizen, but its principal purpose and function is the protection of rights by engaging the State. The Convention is not an academic exercise. Key questions in every case where the Convention is invoked are: on the facts, is there an obligation for the State to become involved? Are the domestic laws and procedures apt to engage the State when necessary, and to protect the citizen’s rights? But these are questions to be asked and answered of the domestic law, for our purposes the common law.
158.It should be no surprise that the common law has provided the answer here. Although it is not necessary for the decision in this case, I also agree with the President that the question whether there is “confinement” should be approached in the careful way analysed by Lord Kerr in Cheshire West, at paragraphs 77 to 79. A three year-old child must be restrained for her own safety if walking near a busy road, or playing near a bonfire. This restraint would be unlawful if exercised over an adult. But it is lawful if exercised by any adult looking after the child. In my view, there is no need for an elaborate analysis of delegated parental responsibility to explain this. In such circumstances, restraint to keep the child safe lawfully could (and normally should) be exercised by any nearby adult. The true analysis is that explained by Lord Kerr. For all present purposes, “confinement” means not simply “confining” a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. In most of the myriad instances in life where children are restrained in one way or another – by being compelled unwillingly to go to school, go to bed at a given time and so forth – there can be no question of their being “confined” so as to fulfil the first limb of the test in Storck.
159.Where there is confinement in the sense I have indicated, so that there may be a need for the State to engage to prevent possible abuse, the questions then become whether parental rights (and duties) can justify the confinement, and whether the State may have an obligation, to be discharged by local authorities and perhaps by the courts, to intervene. Excessively cautious or strict parenting, leading, let us say, to a fourteen year-old who is prevented from ever leaving the house save to be transported to and from school by a parent, might be a case of “confinement”. Other more extreme examples clearly would do so. Then the issue of whether the confinement is justified may arise. It will be evident that such cases are highly fact-specific and that the State will accord great flexibility to parents in caring for their children. That flexibility must reflect the facts, including the “discretion” of the child.
It rather seems to me that the nuts and bolts of Cheshire West are that one compares whether the restrictions on a child are part and parcel of family life or above and beyond that, not by comparing X child with one of similar needs and circumstances but with a child of a similar age. And that means that it would NOT be reasonable for a foster parent to lock the bedroom door of a 17 year old or restrain them if they tried to leave the home, and it doesn’t become reasonable just because X happens to lack capacity and needs those restrictions to keep them safe.
The Court of Appeal have clearly spent hours and hours on this, and my gut feeling is just my gut feeling, so it would be utterly wrong of me to try to argue that the Court of Appeal are wrong here.
Re D is the law now. Re D is.
Re D is.
Re D is
(And if you aren’t reading Tom King and Mitch Gerard’s “Mister Miracle”, can I urge you to do that in the strongest possible terms? It is a mark of how great they currently are that the only work to compare to it this year is the same creative team’s run on Batman. )
The Court of Appeal stress that if a Local Authority are relying on parental consent to authorise a restrictive regime in foster care, they can’t simply rely on generic section 20 consent to authorise this.
149.Finally (paras 126-128), Keehan J rejected the local authority’s contention that the parents’ consent to D being accommodated pursuant to section 20 of the Children Act 1989 was a valid consent to D’s confinement at the residential unit. He disagreed with Mostyn J’s analysis in Re RK (Minor: Deprivation of Liberty)  COPLR Con Vol 1047. Furthermore, he said (para 128):
“the “consent” is to the child being accommodated. It cannot be inferred that that consent means that those with parental responsibility have consented to whatever placement the local authority considers, from time to time, appropriate.”
150.I agree with Keehan J that the mere fact that a child is being accommodated by a local authority pursuant to section 20 does not, of itself, constitute a parental consent for Nielsen purposes to the particular confinement in question. In the first place it needs to be borne in mind that parental consent is not, in law, an essential pre-requisite to a local authority’s use of section 20: see Williams and another v Hackney London Borough Council  EWCA Civ 26,  3 WLR 59. Moreover, even where there is such consent, there remains the powerful point made by Keehan J: to what precisely have the parents consented? That is a matter of fact to be decided in light of all the circumstances of the particular case. Here, as we have seen, Keehan J, found (see paragraph 9 above) that his parents had agreed to D’s being placed at Placement B just as he had earlier found (paragraph 107 above) that they had previously agreed to his being placed at Hospital B. I can see no basis for challenging either of those findings of fact.
(I’m not at all sure now of the status of Keehan J’s previous assertion that whilst parents can consent to restriction of liberty in foster care under s20, they can’t do so under ICOs because the threshold has been found to be crossed. That wasn’t in the case that was appealed, and it has always seemed to me a rather arbitrary distinction. I can’t see that the Court of Appeal look at this, but it is a long judgment, I may have missed it.)
Re D is.