D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, and whether his parents could give consent for it.
Held: (LL Carnwath and Lloyd-Jones dissenting) It was not within the scope of parental responsibility for D’s parents to consent to a placement which deprived him of his liberty. Although there is no doubt that they, and indeed everyone else involved, had D’s best interests at heart, we cannot ignore the possibility, nay even the probability, that this will not always be the case. That is why there are safeguards required by article 5. Without such safeguards, there is no way of ensuring that those with parental responsibility exercise it in the best interests of the child, as the Secretaries of State acknowledge that they must. In this case, D enjoyed the safeguard of the proceedings in the Court of Protection. In future, the deprivation of liberty safeguards contained in the Mental Capacity Act 2005 (as amended by the Mental Capacity (Amendment) Act 2019) will apply to children of 16 and 17. I
Judges:
Lady Hale, President, Lord Carnwath, Lady Black, Lord Lloyd-Jones, Lady Arden
Citations:
[2019] UKSC 42, [2019] PTSR 1816, [2020] MHLR 135, [2020] COPLR 73, [2020] 1 FLR 549, [2019] HRLR 18, [2019] 1 WLR 5403, [2020] 2 All ER 399, (2019) 22 CCL Rep 475, [2019] 3 FCR 631, (2020) 171 BMLR 51, [2019] WLR(D) 587
Links:
Bailii, Bailii Summary, SC, SC Press Summary, SC Summary Video, SC 2018 Oct 03 am Video, SC 2018 Oct 03 pm Video, SC 2018 Oct 04 am Video, WLRD
Statutes:
European Convention on Human Rights 8, Mental Capacity Act 2005, Guardianship of Infants Act 1925, Children Act 1989 1(1) 25, Children (Secure Accommodation) Regulations 1991
Jurisdiction:
England and Wales
Citing:
At First Instance – RK v BCC and Others CA 20-Dec-2011
A young woman aged 17 suffered from autism, attention deficit hyperactivity disorder and severe learning difficulties, as well as epilepsy. She had been looked after at home for nearly 16 years but was then accommodated by the local authority under . .
Appeal From – Re D (A Child) CA 31-Oct-2017
The court considered an order effectively depriving child D of his liberty. . .
Cited – Storck v Germany ECHR 16-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection rejected ( res iudicata ); Violation of Art. 5-1 (placement in private clinic from 1977 to 1979); No separate issue under Arts. 5-4 and 5-5; No . .
Cited – P (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar SC 19-Mar-2014
Deprivation of Liberty
P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult . .
Cited – Rusi Kosev Stanev v Bulgaria ECHR 17-Jan-2012
. .
Cited – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
At CoP – Birmingham City Council v D CoP 21-Jan-2016
D was a young adult with several disorders presenting challenging behaviour. The Hospital sought arrangements allowing control over him for his care and education. . .
Cited – In re AB (A Child : Deprivation of Liberty) FD 28-Jul-2015
The court was asked who, as between the parents and the local authority, could consent to an order depriving a child in residential care, of his liberty.
Held: A local authority with parental responsibility by virtue of a care order or interim . .
Cited – Re D (A Child ; Deprivation of Liberty) FD 31-Mar-2015
The child, now 15 suffered several conditions which led to his challenging behaviour. He had been voluntarily admitted for assessment, and awaited placement in the community, but the Health trust now sought directions confirming the lawfulness of . .
Cited – In re Agar-Ellis (No 2) CA 24-Jul-1883
A father has a legal right to control and direct the education and bringing up of his children until they attain the age of twenty-one years, even although they are wards of Court, and the Court will not interfere with him in the exercise of his . .
Cited – In Re K (A Child) (Secure Accommodation Order: Right to Liberty) CA 29-Nov-2000
An order providing that a child should stay in secure accommodation, was an order which restricted the child’s liberty. A justification for such a restriction had to be brought within the exceptions listed in article 5.
Held: Detention for . .
Cited – Hewer v Bryant CA 1969
The issue was the meaning of ‘in the custody of a parent’ in the Limitation Act 1954.
Held: A 15-year-old living away from home and working as an agricultural trainee was not in the custody of a parent for this purpose. ‘Custody’ in the . .
Cited – Regina v Howard 1966
A child below the age of 16 could consent to sexual intercourse so that it was not rape . .
Cited – Regina v D HL 1984
D was convicted for kidnapping his 5-year old daughter, a ward of court, who was in the care and control of her mother. The CA held that there was no such offence as the kidnapping of a child under 14, that it could not be committed by a parent, and . .
Cited – HL v United Kingdom ECHR 2004
Lack of Patient Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
Cited – Stefan Stankov v Bulgaria ECHR 17-Mar-2015
. .
Cited – The Queen v Howes 23-Nov-1860
a father sought the delivery to him of a girl of 15 who was unwilling to return to him, and had been brought into court in obedience to a writ of habeas corpus and interviewed privately by the judges before they heard argument. Cockburn CJ, giving . .
Cited – Rex v Greenhill 29-Jan-1836
The children were all under six years of age and were with their mother. Their father obtained an order for them to be delivered up to him and their mother applied for that to be set aside.
Held: She was unsuccessful, a father being entitled . .
Cited – Mihailovs v Latvia ECHR 22-Jan-2013
. .
Cited – DD v Lithuania ECHR 14-Feb-2012
. .
Cited – Stanev v Bulgaria ECHR 17-Jan-2012
The court observed, in passing, that ‘there are situations where the wishes of a person with impaired mental facilities may be validly replaced by those of another person acting in the context of a protective measure and that it is sometimes . .
Cited – Thomasset v Thomasset CA 1894
The machinery of enforcement of payment of maintenance was laid down in the Poor Laws: ‘As regards maintenance, the parents’ obligations were measured both at law and in equity by the Poor Laws’.
After quoting Coleridge J in Greenhill, Lindley . .
Cited – Regina v Maria Clarke 21-Jan-1857
The court was asked whether the ten year old girl’s widowed mother, as her guardian for nurture, had a legal right to custody against the wishes of the girl, however intelligent she was, or whether the court was bound to examine the child to . .
Cited – Re T (A Child) CA 4-Oct-2018
The appellant was 15 years old and subject to a full care order. The local authority proposed that she be detained in a unit which was not an approved children’s home, and sought authority from the High Court for the restriction of the child’s . .
Cited – Regina v Gyngall 1893
The father of the child (a girl of about 15) was dead and it was the mother who was the guardian, it seems by operation of the Guardianship of Infants Act 1886. The decision of the first instance court not to return the girl to her mother, despite . .
Cited – Ferreira, Regina (on The Application of) v HM Senior Coroner for Inner South London CA 26-Jan-2017
The situation where a person is taken into an intensive care unit for the purpose of life-saving treatment and is unable to give their consent to their consequent loss of liberty, does not result in a deprivation of liberty for article 5 purposes so . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Re H-B (Contact) CA 22-Apr-2015
F’s appeal against orders made on his application for contact refusing him direct contact.
Sir James Munby P said: ‘. . parental responsibility is more, much more than a mere lawyer’s concept or a principle of law. It is a fundamentally . .
Cited – Nielsen v Denmark ECHR 28-Nov-1988
The applicant, a minor, complained about his committal to a child psychiatric ward of a state hospital at his mother’s request. The question was whether this was a deprivation of his liberty in violation of article 5. The applicant said that it was, . .
Cited – In Re C (A Minor) (Medical Treatment: Court’s Jurisdiction); Re C (Detention: Medical Treatment) FD 21-Mar-1997
A children’s clinic is not secure accommodation, and the court may make orders for his or her treatment whilst in the clinic. The court discussed whether the state had power if necessary to detain a child using its parens patriae powers to give . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Regina v Secretary of State for the Home Department Ex Parte A HL 27-Jan-2000
A youth had been remanded into the care of the local authority pending his trial. He was eventually made subject to a custodial sentence and sought to have the period of remand deducted from his sentence. The period in care had not been in a secure . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Torts – Other, Health Professions, Children
Updated: 19 April 2022; Ref: scu.642320