Birmingham City Council v D [2016] EWCOP 8

“D has complex needs and it was essential that the local authority proceeded carefully so as to ensure that the right placement was found; that is a placement that the local authority considered would meet his needs and would be acceptable to his parents. A significant amount of work has been required by the local authority in order to ensure that a placement was found for D which the local authority considered was the right placement for him and I believe that, having regard to the matters referred to above, the local authority has proceeded to arrange a new placement for D within a reasonable time-frame. ”

“D has his own bedroom. All external doors are locked and D is not allowed to leave the premises unless it is for a planned activity. D receives one-to-one support throughout his waking day, and at night, the ratio of staff to students is 2:1. He is not initially allowed unaccompanied access to the community. D attends school every weekday from 8:45am to 2pm. He then eats his lunch on return to House A. He will then get changed and partake in leisure activities. Currently every Thursday afternoon D attends swimming and will eat his dinner outside of House A with staff. House A has all entrances and exits to the building locked by staff. When wishing to go out into the garden D needs to request a staff member to open the door. These doors are sometimes left open when there is a group leisure activity in the garden. D will be having contact with his parents each Saturday for up to 5 hours. Currently his parents have been visiting for 3 hours as D does get increasingly anxious during this time. There have been no significant issues since D’s move to Placement B.”

“pressure on resources and even considerations of increased delay are not material to a determination of whether there are adequate safeguards to satisfy Article 5.”

“the complex interplay of rights that are in play in relation to those who are under 18 is perhaps most neatly summed up at paragraph 19.48 of the 2015 Mental Health Act 1983 Code of Practice: The child’s right to liberty under Article 5 ECtHR, which should be informed by Article 37 of the United Nations Convention on the Rights of the Child The parents’ right to respect for the right to family life under Article 8 ECtHR, which includes the concept of parental responsibility for the care and custody of minor children, and The child’s right to autonomy which is also protected under Article 8 ECtHR. In seeking to reach a principled way in which to address the balance between these three, it is vitally important to remember the implications for a child of a finding that they are not deprived of their liberty. In particular, the child will therefore be deprived of the rights to: Challenge the lawfulness of their detention before an independent tribunal pursuant to Article 5(4); and In the context of a deprivation of liberty which – as here – is on the basis of the child’s mental disorder, of a regular review of whether the nature and severity of that disorder warrants continued detention, pursuant to Article 5(1)(e) read together with Article 5(4). In other words, the child will lose the right to the “periodic independent check on whether the arrangements made for them are in their best interests” that Lady Hale identified in Cheshire West 8 as necessary in the case of those individuals with disabilities in the position of P, MIG (who at the time of the proceedings before Parker J was 17) and MEG (who was 18), “as a recognition of their equal dignity and status as human beings like the rest of us.” ”

“The remit of our review extends to considering whether young people (not children aged 15 or younger) should fall within our proposed protective care scheme. This would enable deprivations of liberty to be authorised for such people, as well as provide oversight arrangements for their care and treatment. Arguably, the present law introduces unjustifiable inequalities amongst age groups, and potentially places young people at a distinct disadvantage compared to those over 18. The development of human rights law has contributed to the increasing recognition of the need to give greater weight to the views of young people. This is beginning to be reflected in law in relation to the admission of young people under the Mental Health Act. We provisionally consider that the deprivation of liberty of those aged 16 and 17 should come under our scheme. We do not consider that the alternative provisions, such as section 25 of the Children Act, provide an adequate basis for dealing with 16 and 17 year olds who satisfy the “acid test”. […]. It is also a matter of concern that judicial confidence is being placed in the “zone of parental control” which remains a poorly understood and ill-defined concept. It is a concept introduced in the 2008 version of the Mental Health Act Code of Practice and was renamed the “scope of parental responsibility” in the current version. It is emphasised that whether a particular intervention can be undertaken on the basis of parental consent will need to be assessed in the light of the particular circumstances of the case, and practitioners will need to consider a range of factors. These include the age, maturity and understanding of the child or young person. The implication of the case law is that a young person who lacks capacity may be left without the protections guaranteed by article 5 as a result of this concept. We would welcome further views on the appropriateness of the concept of parental control in relation to young people, and evidence of how it is being used.”

“Many of these article 5(1)(e) cases also raise issues as to express or implied consent (to admission to a psychiatric ward or old people’s home). Some of the earlier cases seem questionable today insofar as they relied on “parental rights” (especially Nielsen, which was a nine-seven decision that the admission to a psychiatric ward of a twelve-year old boy was not a deprivation of liberty, because of his mother’s “parental rights”). Storck has, I think, sent out a clear message indicating a different approach to the personal autonomy of young people (although the unfortunate claimant in that case was 18 years of age at the time of her compulsory medication in a locked ward in the clinic at Bremen, for which she was made an exceptionally large award for non-pecuniary loss).”

“Indeed, I have my doubts, for Nielsen, on this point, is widely perceived today as being questionable. And in saying this I emphasise that I have in mind not only my own observations in JE v DE (By his Litigation Friend the Official Solicitor), Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, but more importantly the views of various scholars and of Lord Walker of Gestingthorpe in Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] AC 564, at para [45]. As Mr Sherman asks rhetorically, why should the law in its application of Article 5 distinguish between two young persons who are, and always will, function in essentially the same way and at the same level just because one is under while the other is over the age of majority? But these are not matters I need to consider further, and it is better, as it seems to me, to leave them to be considered in a case where, unlike here, the point actually arises; that is, in a case where there is, the Nielsen point apart, a deprivation of liberty.”

“The Court recalls at the outset that in Nielsen v Denmark it found that Article 5 was not applicable to the hospitalisation of the applicant as that hospitalisation was a responsible exercise by the applicant’s mother of her custodial rights in the interest of the child (paras 61-73). That reasoning cannot be transposed to the present case as, although the local authority had custodial rights over the applicant by virtue of the care order which was still in force, the orders placing the applicant in secure accommodation were made by the courts – the Birmingham Magistrates Court on 23 November 1995 and the Sutton Coldfield Magistrates Court on 23 February 1996 (varied by the High Court on 18 March 1996). There is no question of the respective courts having custodial rights over the applicant, and so Article 5 applies in the present case. ”

“The Court recalls that in its Nielsen v Denmark judgment, it found that Article 5 was not applicable to the hospitalisation of the applicant as that hospitalisation was a responsible exercise by the applicant’s mother of her custodial rights. That reasoning cannot be transposed to the present case as the orders placing the applicant in St Patrick’s were made by the High Court, which court did not have custodial rights over the applicant. Article 5 therefore applies in the present case. ”

“Bearing these elements in mind, in particular the fact that the Cantonal Appeals Commission placed the applicant in the foster home in her own interests in order to provide her with the necessary medical care, as well as satisfactory living conditions and hygiene, and also taking into consideration the comparable circumstances of the case of Nielsen v Denmark, the Court concludes that in the circumstances of the present case the applicant’s placement in the foster home did not amount to a deprivation of liberty within the meaning of Art.5 (1), but was a responsible measure taken by the competent authorities in the applicant’s interests. Accordingly, Art 5(1) is not applicable in the present case. ”

“This reference to the benevolent purpose of the placement is inconsistent with the later Grand Chamber decisions of Creanga v Romania [2012] 56 EHRR 361, para 93, and Austin v United Kingdom [2012] 55 EHRR 359, para 58. There it was stated that an underlying public interest motive “has no bearing on the question whether that person has been deprived of his liberty… The same is true where the object is to protect, treat or care in some way for the person taken into confinement, unless that person has validly consented to what would otherwise be a deprivation of liberty” (para 58).” “has no bearing on the question whether that person has been deprived of his liberty… The same is true where the object is to protect, treat or care in some way for the person taken into confinement, unless that person has validly consented to what would otherwise be a deprivation of liberty” (para 58).”

“71. The Court recalls that, in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. 74. However, the notion of deprivation of liberty within the meaning of Art.5(1) does not only compromise the objective element of a person’s confinement to a certain limited place for a not negligible length of time. Individuals can only be considered as being deprived of their liberty, if, as an additional subjective element, they have not validly consented to the confinement in question. The Court notes that in the present case, it is disputed between the parties whether the applicant had consented to her stay in the clinic. 89. The Court recalls that the question whether a deprivation of liberty is imputable to the State relates to the interpretation and application of Art.5(1) of the Convention and raises issues going to the merits of the case, which cannot be regarded merely as preliminary issues. It agrees with the parties that in the present case, there are three aspects which could engage Germany’s responsibility under the Convention for the applicant’s detention in the private clinic in Bremen. First, the deprivation of liberty could be imputable to the state due to the direct involvement of public authorities in the applicant’s detention. Secondly, the State could be found to have violated Art5(1) in that its courts, in the compensation proceedings brought by the applicant, failed to interpret the provisions of civil law relating to her claim in the spirit of Art 5. Thirdly, the State could have violated its positive obligations to protect the applicant interferences with her liberty carried out by private persons.”

“122. …The Court considers that the restrictions complained of by the applicant are the result of various steps taken by public authorities and institutions through their officials, from the initial request for his placement in an institution and throughout the implementation of the relevant measure, and not of acts or initiatives by private individuals. Although there is no indication that the applicant’s guardian acted in bad faith, the above considerations set the present case apart from Nielsen, in which the applicant’s mother committed her son, a minor, to a psychiatric institution in good faith, which prompted the Court to find that the measure in question entailed the exercise of exclusive custodial rights over a child who was not capable of expressing a valid opinion. 130. As to the subjective aspect of the measure, it shou dbe noted that, contrary to the requirements of domestic law, the applicant was not asked to give his opinion on his placement in the home and never explicitly consented to it. Instead, he was taken to Pastra by ambulance and placed in the home without being informed of the reasons for or duration of that measure, which had been taken by his officially assigned guardian. The Court observes in this connection that there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned. However, the Court has already held that the fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehended his situation. In the present case, domestic law attached a certain weight to the applicant’s wishes and it appears that he was well aware of his situation. The Court notes hat at least from 2004, the applicant explicitly expressed his desire to leave the Pastra Social Care Home, both to psychiatrists and through his applications to the authorities to have his legal capacity restored and to be released from his guardianship.”

“148. As to the facts in Nielsen, the other case relied on by the Government, the applicant in that case was a child, hospitalised for a strictly limited period of time of only five and a half months, on his mother’s request and for therapeutic purposes. The applicant in the present case is a functional adult who has already spent more than seven years in the Kėdainiai Home, with negligible prospects of leaving it. Furthermore, in contrast to this case, the therapy in Nielsenconsisted of regular talks and environmental therapy and did not involve medication. Lastly, as the Court found in Nielsen, the assistance rendered by the authorities when deciding to hospitalise the applicant was “of a limited and subsidiary nature” (§ 63), whereas in the instant case the authorities contributed substantially to the applicant’s admission to and continued residence in the Kėdainiai Home.”

“151. Lastly, the Court notes that although the applicant’s admission was requested by the applicant’s guardian, a private individual, it was implemented by a State-run institution – the Kėdainiai Home. Therefore, the responsibility of the authorities for the situation complained of was engaged (see Shtukaturov, cited above,§ 110).”

“134. The Court further notes that in Nielsen v Denmark 28 November 1988 67 Series A no. 144, the applicant was an under-age child, hospitalised for the strictly limited period of only five and a half months, at his mother’s request and for therapeutic purposes. The applicant in the present case was a fully functioning adult. Furthermore, in contrast to instant case, the therapy in Nielsen consisted of regular talks and environmental therapy and did not involve medication. Lastly, the Court found in Nielsen that the assistance rendered by the authorities on the applicant’s hospitalisation was “of a limited and subsidiary nature”, whereas in the instant case the authorities appear to have contributed substantially to the applicant’s admission to the hospital and her continued hospitalisation. 135. As to the subjective aspect of the measure, the Court notes that at the time of her hospitalisation the applicant was of an age and that there is no evidence in the file that she lacked legal capacity to decide matters for herself. However, according to the information received by the Government on 16 October 2010 from the management of the Sapoca Psychiatric Hospital, and notwithstanding the applicant’s statement that she was told by the medical staff that she had signed the hospitalisation papers, Dr I obtained the informed consent for the applicant’s hospitalisation and treatment from the applicant’s mother on account of the applicant’s clinical condition (see paragraph 24 above). In this context the Court considers that it is reasonable to assume that the applicant did not directly consent to her hospitalisation and treatment.”

“3.56 The Discussion Paper also contained three questions based on a comment by the European Court in the Stanev case: “The Court observes in this connection that there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned.” 3.57 The reference to ‘valid replacement’ had led us to wonder if it might be possible to construct provisions of domestic law based on the premise that consent by a surrogate decision maker (an attorney or guardian) prevents a given set of restrictions from amounting in law to deprivation of liberty. This would occur because the ‘valid replacement’ would constitute consent. Thus, the subjective requirement before there can be a deprivation of liberty, according to the jurisprudence of the Strasberg Court, would not be met.”

“We did not receive any responses which favoured development of provisions based around this observation form the European Court of Human Rights. Having reflected further on the matter, we do not think it would be sensible to base recommendations on this isolated passage from the European Court. In practice, it would have no real effect on guardians, since guardianship would probably require to include an appropriate power (perhaps ‘to consent to residence in conditions which would otherwise amount to a deprivation of liberty’). Little would be gained by such a provision, and confusion would be likely. In the longer term, if models of supported decision-making become more established in the domestic laws of the Member States of the Council of Europe, it may be that the European Court of Human Rights will explore the extent, if any, to which the subjective element of deprivation of liberty (consent by the person) can fit with these other models, but that will take time to address and develop.” “The Court observes in this connection that there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned.”

“The analysis emphasises that plainly not all restrictions placed on the liberty of children constitute deprivation. Obviously parents have a right and a responsibility to restrict the liberty of their children, not only for protective and corrective purposes, but also sometimes for a punitive purpose. So acting they only risk breaching a child’s article 5(1) rights if they exceed reasonable bounds. Equally parents may delegate that right and responsibility to others. Every parent who sends a child to a boarding school delegates to the head teacher and his staff. A local authority may even send a child to a school that provides 52-week boarding facilities. Then restrictions on liberty imposed by the school do not amount to a breach of the pupils rights under article 5(1) unless the school betrays its responsibilities to the family. For these reasons I accept Mr Garnham’s first and bold submission that the order of 30 June did not breach K’s article 5 rights since the deprivation of liberty was a necessary consequence of an exercise of parental responsibility for the protection and promotion of his welfare. I am not deterred by Mr Ryder’s skeleton: “It is accepted that the purpose of secure accommodation is to restrict liberty” and his subsequent rejection of the opportunity to adopt Mr Garnham’s submissions.”

“Mr Garnham’s first submission on behalf of the Secretary of State for Health was that K had not been deprived of his liberty for the purposes of article 5. The local authority had simply exercised parental responsibility for him in his own best interests. There was some interesting discussion about the way in which parents restrict the movements of their children from time to time by, for example, putting young children to bed when they would rather be up or “grounding” teenagers when they would prefer to be partying with their friends, or sending children to boarding schools, entrusting the schools with authority to restrict their movements. All this reflects the normal working of family life in which parents are responsible for bringing up, teaching, enlightening and disciplining their children as necessary and appropriate, and into whish the law and local authorities should only intervene when the parents’ behaviour can fairly be stigmatised as cruel or abusive. It is not necessary to deal with any argument that such parental behaviour might constitute an interference with a child’s liberty, or contravene his “human rights”

“The consensus is to this effect: The decisions of the European Court of Human Rights in Neilson v Denmark [1988] 11EHRR 175 and of this court in Re K [2002] 2WLR 1141 demonstrate that an adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However restrictions so imposed must not in their totality amount to deprivation of liberty. Deprivation of liberty engages the Article 5 rights of the child and a parent may not lawfully detain or authorise the deprivation of liberty of a child. ”

“While there is a subjective element in the exercise of ascertaining whether one’s liberty has been restricted, this is to be determined primarily on an objective basis. Restriction or deprivation of liberty is not solely dependent on the reaction or acquiescence of the person whose liberty has been curtailed. Her or his contentment with the conditions in which she finds herself does not determine whether she is restricted in her liberty. Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. Nor is it diminished by one’s lack of capacity. 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. 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 a similar age, their liberty is – and must remain- a constant feature of their lives, the restriction amounts to a deprivation of liberty. 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.”

“The subjective element in deprivation of liberty is the absence of valid consent to the confinement in question: see para 117 of Stanev. This must be distinguished from passive acquiescence to the deprivation, particularly where that stems from an inability to appreciate the fact that one’s liberty is being curtailed. In para 118 (c) the court said that deprivation of liberty occurs when an adult is incapable of giving his consent to admission to a psychiatric institution, even though he had never attempted to leave it. And as Baroness Hale DPSC has pointed out (in para 24 of her judgment) the court also said in para 119 that the right to liberty was too important to be lost simply because a person had given himself up to detention, especially where he is legally incapable of consenting to or disagreeing with it. ”

“Although the Court of Protection has jurisdiction to deal with the property and affairs of a minor it rarely exercises that jurisdiction. It was an important aspect of the Children Act 1989 that disabled children were brought firmly into the general law relating to children. However, whilst a "child" for its purposes is a person under 18no care or supervision order can be made in relation to a child of 17 (or 16, if married); public protective intervention is therefore unavailable to those aged 17 (or 16, if married). In the private law field, orders can only be made or continued once a child has reached 16 if there are "exceptional" circumstances (which would clearly include incapacity). The principle of normalisation would suggest that an incapacitated person should be placed in the same position as any other person of the same age. It would satisfy both this principle and the philosophy of the Children Act to leave private disputes about the administration of property or the care or welfare of incapable minors to be resolved under the Children Act scheme, and make any new jurisdiction available only to those aged 18 and over. This, however, would leave an undesirable one (or two, if married) year gap during which public intervention to protect an incapacitated minor would only be available under the surviving inherent jurisdiction. One solution is to differentiate between the ages for public and private intervention under the new jurisdiction. The other is to have one age, namely 16, as the qualifying age for the new jurisdiction but accept some overlap between it and child law. The difficulty with this is the existing parental responsibility (and the courts' powers) to make at least some decisions on behalf of at least some children up to the age of 18.7 Can it then be acceptable to have two jurisdictions applicable in the same case which may employ different definitions of capacity, different procedures, and different principles of intervention? An alternative solution would be to allow public law intervention under the Children Act 1989 in respect of incapacitated children. We tend to think that any overlap will not produce difficulties in practice. Further, if there were a properly defined jurisdiction for decision-making on behalf of mentally incapacitated adults, it might be more appropriate in principle for 16 and 17 year olds to be considered under that jurisdiction rather than as if they were young children. Hence we provisionally propose that: 1. The new jurisdiction should extend to persons aged 16 and over.”

“Although the focus of our project has always been adults. who lack decision-making capacity, we provisionally proposed in our 1993 consultation papers that any new jurisdiction should apply to those aged 16 and over. We explained that a number of the statutory provisions in the Children Act 1989 do not apply to those in the 16-18 age group, or only apply in “exceptional” circumstance. For some purposes in the health care field, patients aged 16 and 17 are treated as if they were of full age.’ On a practical level, respondents confirmed that both statutory and voluntary sector service agencies tend to have special arrangements for those aged 16 and over, with an emphasis on preparations for independent adult life, making suitable long-term provision if necessary. It is often not at all appropriate simply to continue to offer services designed to support younger children within their families. If continuing substitute decision-making arrangements are needed by someone aged 16 or 17 it may well be because that young person lacks mental capacity and not because he or she is under the age of legal majority. In cases where legal proceedings are required, so that disputes can be resolved or legally effective arrangements made, it would be wasteful to require two sets of legal proceedings to be conducted within a short time period where it is obvious that the problem which has to be resolved will not disappear when the person concerned reaches 18. Respondents, including those who specialise in work with young adults with mental disabilities, supported our proposal to bring those aged 16 and over who lack mental capacity within the new statutory scheme. Most agreed that the resultant overlap with the Children Act 1989 and the inherent jurisdiction of the High Court would pose no great problems in practice. We recommend that the provisions of the legislation should in general apply to those aged 16 and over. (Draft Bill, clauses l(2)and 36(2).)”

“State parties shall respect the responsibilities, rights and duties of parents or, where appropriate, the members of the extended family or community as is provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, direction, guidance in the exercise by the child of the rights recognised in the present Convention.”

“31. Obviously a local authority discharging its duty under s20 has to keep its charges safe. It owes them a clear and important duty of care. Were it not to do so it would be liable to be sued for negligence. But as a matter of principle the discharge of that duty of care is not going to give rise to a deprivation of liberty if the child’s parents can remove the child from the accommodation at any time under s20(8). If the child’s parents decide not to remove him and the safeguarding of the child involves an actual confinement then it would be hard to say that the third element is satisfied, namely imputation to the State. Rather, the confinement will have been at the behest of the parents. 32. Both Mr Lock and Mr O’Brien argue that the question is not to be decided by reference to what they call ‘legal niceties’. They say that the matter is to be examined de facto rather than de jure. I disagree. I consider that examination of the ‘measure in question’ involves asking first and foremost what is the legal basis for the confinement. If the legal basis is truly voluntary then it is very hard, indeed impossible, to see, that there has been an actual confinement at the behest of the State. 33. That said, I will find later in this judgment that even on the footing argued by Mr Lock and Mr O’Brien, there has been no deprivation of liberty here. But my primary decision is that, given the terms of s20 (8), the provision of accommodation to a child, whether aged 17 or 7, under s20 (1), (3), (4) or (5) will not ever give rise to a deprivation of liberty within the terms of Art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. If the child is being accommodated under the auspices of a care order, interim or full, or if the child has been placed in secure accommodation under s25, then the position might be different, but that is not the case here.”

“But my primary decision is that given the terms of s20 (8) the provision of accommodation of a child, whether 17 or 7, under 20 (1), (3), (4) or (5) will not ever give rise to a deprivation of liberty which in the terms of Article 5 [of the Convention].”

“[P]arental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child and towards other children in the family”

“The principle of the law, as I shall endeavour to show, is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child. The principle has been subjected to certain age limits set by statute for certain purposes: and in some cases the courts have declared an age of discretion at which a child acquires before the age of majority the right to make his (or her) own decision. But these limitations in no way undermine the principle of the law, and should not be allowed to obscure it. ”

“[T]he legal right of a parent to the custody of a child ends at the 18th birthday; and even up till then, it is a dwindling right which the Courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.”

“Adolescence is a period of progressive transition from childhood to adulthood and as experience of life is acquired and intelligence and understanding grow, so will the scope of the decision-making which should be left to the minor, for it is only by making decisions and experiencing the consequences that decision-making skills will be acquired. As I put it in the course of the argument, and as I sincerely believe “good parenting involves giving minors as much rope as they can handle without an unacceptable risk that they will hang themselves.”

“In the case of children living at home, what might otherwise be a deprivation of liberty would normally not give rise to an infringement of article 5 because it will have been imposed not by the state, but by virtue of what the Strasbourg court has called "the rights of the holder of parental authority", which are extensive albeit that they "cannot be unlimited" (see Nielsen v Denmark (1988) 11 EHRR 175, para 72, a decision which, at least on its facts, is controversial, as evidenced by the strength of the dissenting opinions).”

“136. In addition, the Court notes that there is no evidence in the file that the applicant’s mother was appointed to act as her legal representative. Moreover, given the continual conflicts between the applicant and her parents, and in the absence of any express procedural safeguards provided by Law no. 487/2002, in force at the relevant time, with regard to the appointment of personal representatives, or of any explicit evidence that the applicant had appointed her mother as her personal representative at the time of her hospitalisation, the Court is not convinced that the applicant’s mother acted as the applicant’s personal representative. Consequently, the Court cannot accept that the applicant validly consented either directly or indirectly to her hospitalisation or treatment. The prosecutor’s order of 27 September 2005 is not sufficient to persuade the Court to the contrary.”

“The Court did not refer in its assessment in any of these later cases to Nielsen v Denmark (1988) 11 EHRR 175, which concerned a 12 year old boy placed in a children’s psychiatric unit by his mother (who alone had parental responsibility for him). The court held, by a majority of nine to seven, that he had not been deprived of his liberty. The restrictions to which he was subject were “no more than the normal requirements for the care of a child of 12 years of age receiving treatment in hospital. The conditions . . . did not, in principle, differ from those obtaining in many hospital wards where children with physical disorders are treated” (para 72). Hence his hospitalisation “did not amount to a deprivation of liberty within the meaning of article 5, but was a responsible exercise by his mother of her custodial rights in the interest of the child” (para 73). The seven dissenting judges considered that placing a 12 year old boy who was not mentally ill in a psychiatric ward for several months against his will was indeed a deprivation of liberty. It would appear, therefore, that the case turns on the proper limits of parental authority in relation to a child. As already mentioned (para 4 above) there is no equivalent in English law to parental authority over a mentally incapacitated adult. In any event, the Strasbourg court was not deterred from finding a deprivation of liberty in the cases of Stanov, DD, Kedzior and Mihailovs by the fact that the placements were arranged by the person who had been appointed legal guardian of the applicant. Freedom to leave in this sense was the crucial factor, not only in HL v United Kingdom, where the complainant was placed in a hospital, but also in Stanev v Bulgaria, where the complainant was placed in a care home, as were the complainants in DD v Lithuania, Kedzior v Poland, and Mihailovs v Latvia. In each of these, the court’s focus when considering the confinement question was on whether the complainant was “under the complete supervision and control of the staff and not free to leave”

“In all these cases, the applicant lacked the legal capacity to consent to the placement. In Shtukaturov v Russia 54 EHRR 962, decided in 2008, the applicant had been placed in a psychiatric hospital at the request of his legal guardian, which in Russian law was regarded as a “voluntary” admission. Although he lacked the de jure legal capacity to decide for himself, this did not necessarily mean that he was de facto unable to understand his situation (para 108). Indeed, he had evinced his objections. The subjective element of lack of consent was made out (para 109). The court took the same view in DD (para 150) and in Kedzior (para 58). Thus it appeared to give some weight to the objections of a person who lacked legal capacity when deciding that the subjective element was made out despite the consent of the person’s legal guardian. But in Mihailovs, the court seems to have gone further. In relation to one of the care home placements, the court held that there was a deprivation of liberty, because although the applicant lacked legal capacity he subjectively perceived his compulsory admission there as such a deprivation (para 134). In relation to a later placement, however, he did not raise any objections or attempt to leave and the court concluded that he had “tacitly agreed” to stay there and thus had not been deprived of his liberty (paras 139, 140). In contrast, of course, in HL v United Kingdom, the patient was deprived of his liberty in the hospital despite his apparent compliance.”

“In none of the more recent cases was the purpose of the confinement – which may well have been for the benefit of the person confined – considered relevant to whether or not there had been a deprivation of liberty. If the fact that the placement was designed to serve the best interests of the person concerned meant that there could be no deprivation of liberty, then the deprivation of liberty safeguards contained in the Mental Capacity Act would scarcely, if ever, be necessary. As Munby J himself put it in JE v DE [2007] 2 FLR 1150, para 46: ‘I have great difficulty in seeing how the question of whether a particular measure amounts to a deprivation of liberty can depend upon whether it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse . . . two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified?’ This view has been confirmed by the rejection in Austin v United Kingdom 55 EHRR 359, para 58, with specific reference to the care and treatment of mentally incapacitated people, of any suggestion by the House of Lords in Austin v Comr of Police of the Metropolis [2009] AC 564 that a beneficial purpose might be relevant (and see also MA v Cyprus (Application No 41872/10), 23 July 2013 and Creanga v Romania 56 EHRR 361).”

“Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”

“In the end, none of these suggested distinctions is satisfactory. Nor, in my view, should they be. It is very easy to focus upon the positive features of these placements for all three of the appellants. The local authorities who are responsible for them have no doubt done the best they could to make their lives as happy and fulfilled, as well as safe, as they possibly could be. But the purpose of article 5 is to ensure that people are not deprived of their liberty without proper safeguards, safeguards which will secure that the legal justifications for the constraints which they are under are made out: in these cases, the law requires that they do indeed lack the capacity to decide for themselves where they should live and that the arrangements made for them are in their best interests. It is to set the cart before the horse to decide that because they do indeed lack capacity and the best possible arrangements have been made, they are not in need of those safeguards. If P, MIG and MEG were under the same constraints in the sort of institution in which Mr Stanev was confined, we would have no difficulty in deciding that they had been deprived of their liberty. In the end, it is the constraints that matter. Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us.”

“The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D’s disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility. ”

“The Court observes in this connection that there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned.”

“136. In addition, the Court notes that there is no evidence in the file that the applicant’s mother was appointed to act as her legal representative. Moreover, given the continual conflicts between the applicant and her parents, and in the absence of any express procedural safeguards provided by Law no. 487/2002, in force at the relevant time, with regard to the appointment of personal representatives, or of any explicit evidence that the applicant had appointed her mother as her personal representative at the time of her hospitalisation, the Court is not convinced that the applicant’s mother acted as the applicant’s personal representative. Consequently, the Court cannot accept that the applicant validly consented either directly or indirectly to her hospitalisation or treatment. The prosecutor’s order of 27 September 2005 is not sufficient to persuade the Court to the contrary.”

“42.I therefore conclude that the first (objective) element of the test is not satisfied in this case. I further conclude that the second (subjective) element is not satisfied. RK was placed at KCH by her parents pursuant to a s20 agreement. They consented on her behalf in circumstances where with a mental age of about two years she is obviously incapable of giving her own consent and where her parents have parental responsibility for her. By s3(1) of the Children Act 1989 parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”

“…..my primary decision is that, given the terms of s20(8), the provision of accommodation to a child, whether aged 17 or 7, under s20(1), (3), (4) or (5) will not ever give rise to a deprivation of liberty within the terms of Art 5 of the European Convention on Human Rights.”

“43.I further conclude that the third element is not satisfied. RK’s placement at KCH is at the behest of her parents. It cannot be imputed to the state. ”

“For present purposes I can summarise my conclusions as follows. Where the State – here, a local authority – knows or ought to know that a vulnerable child or adult is subject to restrictions on their liberty by a private individual that arguably give rise to a deprivation of liberty, then its positive obligations under Art 5 will be triggered. (i) these will include the duty to investigate, so as to determine whether there is, in fact, a deprivation of liberty. In this context the local authority will need to consider all the factors relevant to the objective and subjective elements referred to in para [48] above; (ii) if, having carried out its investigation, the local authority is satisfied that the objective element is not present, so there is no deprivation of liberty, the local authority will have discharged its immediate obligations. However, its positive obligations may in an appropriate case require the local authority to continue to monitor the situation in the event that circumstances should change; (iii) if, however, the local authority concludes that the measures imposed do or may constitute a deprivation of liberty, then it will be under a positive obligation, both under Art 5 alone and taken together with Art 14, to take reasonable and proportionate measures to bring that state of affairs to an end. What is reasonable and proportionate in the circumstances will, of course, depend upon the context, but it might for example, Mr Bowen suggests, require the local authority to exercise its statutory powers and duties so as to provide support services for the carers that will enable inappropriate restrictions to be ended, or at least minimised; (iv) if, however, there are no reasonable measures that the local authority can take to bring the deprivation of liberty to an end, or if the measures it proposes are objected to by the individual or his family, then it may be necessary for the local authority to seek the assistance of the court in determining whether there is, in fact, a deprivation of liberty and, if there is, obtaining authorisation for its continuance.”

“The principle of ‘pragmatism’ prayed in aid at paragraphs 108-110, derived from the decision of House of Lords in Austin is one upon which very little weight can properly be placed where the European Court of Human Rights in the subsequent application by Ms Austinmade clear that pragmatism has no place in the determination of whether an individual is deprived of their liberty, which must be considered by reference to the standard principles derived from previous case-law: see paragraphs 58-9. It needs also to be recalled that Austin arose in a very different context; the governing principles that apply in the instant case (that of deprivation of liberty for purposes of providing care to a boy with substantial mental health problems) must be those derived from Cheshire West. ”