Parental Responsibility & Deprivation of Liberty- Re D ( A Child: Deprivation of Liberty) [2015] EWHC 922 (Fam)

By Francesca Gardner

D ( A Child: Deprivation of Liberty) Judgment 

Keehan J held that a child aged 15, whilst subject to continuous supervision and control and is not free to leave the hospital setting that he is placed in is not deprived of his liberty under Article 5 because his parents consented to the placement and such decisions falls within the proper exercise of parental responsibility.

Keehan J heard arguments as to whether or not such decision falls within parental responsibility as for example; the trust did not accept that the parents could consent to a deprivation of liberty on the child’s behalf. In his analysis the Judge comments on the fact that the child in this case has autism and that such decisions may therefore differ than those made for a child without any disabilities. Following the Supreme Court decision of Cheshire West, this raises significant questions as to whether the rights of a disabled child differ from the rights of a child without disabilities?

The child in this case was very close to his sixteenth birthday and the Judge made reference to the fact that at that point the deprivation of his liberty would have to be sanctioned by the Court of Protection pursuant to the provisions of the Mental Capacity Act 2005. He would then be afforded the safeguards of regular reviews both internal in the residential setting and by the Court. It is difficult to see therefore how the Article 5 rights of those children with disabilities that are not approaching their sixteenth birthday will be protected?

It is difficult to see how this decision is compatible with that of Lady Hale in Cheshire West: ‘…it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else.’

This case raises two interesting questions: firstly the extent and scope of parental responsibility? and second the Article 5 rights of children before they reach the age of 16?