Joanne Clement and Jonathan Auburn in Supreme Court case Re D


The Supreme Court today handed down judgment in the case of In the matter of D (A Child) [2019] UKSC 42. D was a young person aged 16. The case concerned the confinement of D in a residential placement, which met the “acid test” in Cheshire West. D lacked capacity and Gillick competence to make decisions about his residence and care. The Court considered whether D’s confinement amounted to a deprivation of liberty for the purposes of Article 5 of the ECHR in circumstances where his parents were consenting to D’s confinement.

The Supreme Court (by a majority of 3:2) allowed the appeal.  Lady Hale concluded that Article 5 protects children who lack the capacity to make decisions. Where a mentally disabled child is subject to a level of control beyond that which is normal for a non-disabled child of his age, the child has been confined within the meaning of Article 5(1) of the Convention. The parent of a 16 or 17 year old cannot give substituted consent on behalf of the child so as to take the confinement outside of the scope of Article 5(1). It was not within the scope of parental responsibility for D’s parents to consent to a placement which deprived him of his liberty.

Joanne Clement and Jonathan Auburn acted for the Secretary of State for Education and the Secretary of State for Justice, led by Sir James Eadie QC.

The judgment is located here.