The case concerned D, now a 20 year old adult who had been diagnosed with attention deficit hyperactivity disorder, Asperger’s syndrome and Tourette’s syndrome, with a mild learning disability. D required constant supervision and control. At the age of 14, D was informally admitted to hospital A. The unit at which D lived at the hospital had a locked external door, D was checked on by staff every half an hour and when leaving the site was accompanied by staff on a 1:1 basis. Visits home were supervised at all times.
D was the subject of three sets of proceedings leading up to this decision as follows:
1. An application in 2014 for a declaration by the Hospital Trust that it was lawful for the Trust to deprive D of his liberty and that it was in his best interests. Keehan J held that (1)The conditions under which D was living amounted to a deprivation of liberty; (2) it was ‘within the zone of parental responsibility’ for his parents to agree arrangements which would otherwise amount to a deprivation of D’s liberty; (3) once he reached 16 years he would come under the jurisdiction of the Court of Protection along with the regime of the Mental Capacity Act 2005.
2. An application on D’s 16th birthday in the Court of Protection for a declaration that D would not be deprived of his liberty at Placement B (under s 20 Children Act 1989) given his parents ability to consent was issued by Birmingham City Council. Keehan J held that the parents could no longer consent to what would otherwise be a deprivation of liberty now that D was 16.
3. An appeal of Keehan J’s decision in the Court of Protection was allowed by the Court of Appeal on the grounds that it was wrong to hold that a parent could not consent to the deprivation of liberty of a 16 or 17 year old who lacked the capacity to decide for themselves. Sir James Munby presiding concluded that the exercise of parental responsibility does not come to an end “on the attaining of some fixed age but on attaining ‘Gillick capacity’” – the point at which the child is sufficiently mature to make decisions for themselves.
The Supreme Court in overturning the decision of the Appeal Court determined that Gillick capacity is not relevant in considering deprivation of liberty. The starting point was an examination of the relationship between parental responsibility and Article 5. The conclusion was that it is not within the scope of parental responsibility for a parent to consent to deprivation of a 16-17 year old child’s liberty.
The practical implications for Local Authorities is that they be alive to the circumstances under which 16 and 17 year old for whom they have responsibility are cared for, and also those in private schools, collages and within their own homes because ‘state imputability arises where the state knows or ought to know of such confinements’. At present, in many cases the deprivation of liberty will need to be authorized by court order. However when the Mental Capacity (Amendment) Act 2019 comes into effect, the new scheme of deprivation of liberty safeguards will apply to 16 – 17 year olds.
The case also contains a discussion of how s 25 Children Act 1989 should be interpreted.
The full judgment is available here: In the matter of D (A Child)  UKSC 42, 26 September 2019