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 KC.
The judgment is located here.
