On 26 September 2019, the Supreme Court handed down the long awaited judgment in Re D  UKSC 42 which considers the question of whether or not parents are able to consent to the deprivation of liberty of their 16 and 17 year old children or whether court authorisation is required.
D had been diagnosed with a mild learning disability, attention deficit hyperactivity disorder, Asperger’s syndrome and Tourette’s. In 2013, when he was 14, he was admitted to a mental health hospital for assessment and treatment. He lived in a locked unit within the hospital grounds and was checked by staff every thirty minutes, had one to one support in the community and had supervised home visits.
In 2014, the Hospital Trust made an application under the inherent jurisdiction of the Family Division of the High Court seeking a declaration that depriving D of his liberty was lawful and in his best interests. The case was heard by Keehan J who held that, whilst the arrangements amounted to a deprivation of liberty, it was “within the zone of parental responsibility” for his parents to consent to it: Re D (A Child) (Deprivation of Liberty)  EWHC 922 (Fam).
A decision was made to move D from his hospital placement to a residential placement and when D turned 16, the local authority made an application to the Court of Protection seeking a declaration that D would not be deprived of his liberty as his parents were able to consent to it. In January 2016, Keehan J held that his parents were unable to consent to any deprivation of liberty now that D had reached the age of 16: Birmingham City Council v D (by his litigation friend, the Official Solicitor)  EWCOP 8.
The local authority appealed to the Court of Appeal and judgment was handed down on 31 October 2017. The Court of Appeal overturned the decision made by Keehan J at first instance finding that D’s parents were able to consent on his behalf. The Official Solicitor was granted permission to appeal to the Supreme Court on D’s behalf.
Supreme Court Judgment
The Supreme Court decided with a majority of three to two, that parental responsibility does not extend to permit parents to authorise a deprivation of liberty in relation to 16 and 17 year olds. In giving the leading judgment, Lady Hale explained at paragraph  that:
“the degree of supervision and control to which D was subject while in Placement B and Placement C was not normal for a child of 16 or 17 years old. It would have amounted to a deprivation of liberty in the case of a child of that age who did not lack capacity.”
She therefore raised the question as to what effect D’s mental disability has on the above and embarked upon considering the discussion in Cheshire West and Chester Council v P  UKSC 19;  AC 896 by Lord Kerr. She explained that in Cheshire West the key point was to compare the living arrangements of those with mental disabilities to those who did not have mental disabilities, highlighting that because the living arrangements had been made in a person’s best interests, it did not follow that there was no deprivation of liberty. Applying the above principle, Lady Hale stated that “it follows that a mentally disabled child who is subject to a level of control beyond that which is normal for a child of his age has been confined within the meaning of article 5.” 
The case considered whether the consent of the person confined could be substituted by the consent of the person’s parents, resulting in limb (b) (the so-call “subjective element”) of the test for deprivation of liberty set out in Storck v Germany (2005) 43 EHRR 6, not being met. Following consideration of the European case law, Lady Hale agreed with Keehan J that the decisions of the European court have been “very far from adopting a general principle of substituted consent” and asserted that “parental consent […] cannot substitute the subjective element in limb (b) of Storck” .
When considering whether circumstances would arise whereby parents could authorise what would otherwise be a deprivation of liberty, Lady Hale considered the situation where the parent was the detainer. She explained that it was recognised within the European case law (Nielsen v Denmark (1988) 11 EHRR 175 and Storck) that “the state has a positive obligation to protect individuals from being deprived of their liberty by private persons” . Lady Hale also considered the situation where the parent seeks to authorise the state to do the detaining, commenting that:
“it would be a startling proposition that it lies within the scope of parental responsibility for a parent to license the state to violate the most fundamental human rights of a child:” 
Lady Hale went on to say that “in any event, the state could not do that which it is under a positive obligation to prevent others from doing.” 
Lady Hale concluded that consenting to a placement which deprives D of his liberty does not fall within the scope of parental responsibility, stating that
“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” .
Lady Black agreed with the decision and reasoning given by Lady Hale in her judgment but also went on to provide her views on Sir James Munby’s analysis of Gillick v West Norfolk & Wisbech Area Health Authority  AC 112 in this case when the matter was before the Court of Appeal. Lady Black disagreed with Sir James Munby’s comments in respect of Gillick capacity and specifically the proposition that Gillick capacity should be used as a test to determine when parental responsibility ends. Lady Black reasons for this were firstly because Gillick was focused on the issue of medical treatment and not deprivation of liberty and secondly because it focused upon the question of
“whether the parent could lose his or her exclusive decision-making powers before the child reached the age of 16, if the child was capable of making his or her own decision, not whether the parent was entitled to continue to make decisions after the child reached 16, if the child was not capable.” 
Lady Black went on to say
“article 5 of the European Convention on Human Rights was not material in the Gillick decision, but is of central importance to the present case, as can be seen from Lady Hale’s judgment.” 
Lady Arden also agreed with Lady Hale’s judgment but said that “there will be cases where a person loses their liberty but the acid test in Cheshire West, as Lady Hale describes it, does not apply” . She specifically referred to the case of R (Ferreira) v Inner South London Senior Coroner  QB 487, stating that where a person is detained for life-saving treatment, this does not constitute a deprivation of liberty for article 5 purposes if “the loss of liberty is due to the need to provide care for them on an urgent basis because of their serious medical condition” and it “is necessary and unavoidable, and results from circumstances beyond the state’s control.” 
Lord Carnwath dissented from the judgments of Lady Hale, Lady Black and Lady Arden and his judgment was supported by Lord Lloyd-Jones. He agreed with the decision made by Sir James Munby in the Court of Appeal and rejected the interpretation of Gillick set out in the judgment of Lady Black.
When considering the common law and the Mental Capacity Act 2005, Lord Carnwath stated that, like Sir James Munby, he could not identify anything within the Mental Capacity Act 2005 that “detracts from the common law principle”  and that he was not persuaded that the court should accept the invitation to “develop the law to fill a supposed gap left by the legislation” .
Whilst the judgment is clear that parents are unable to consent to the deprivation of liberty of 16 and 17 year olds and that an application to the Court of Protection will be required to authorise any such deprivation, there are some issues which may require further clarification from the courts in future cases.
Firstly, in her judgment, Lady Black commented on the issue of s25 of the Children Act 1989 (which provides for secure accommodation of children) and deprivation of liberty. Whilst she expressed that she had not reached a final view on the issue, she said that
“The exercise in which we have engaged has…, been sufficient to persuade us that section 25 is not intended to be widely interpreted, so as to catch all children whose care needs are being met in accommodation where there is a degree of restriction of their liberty, even amounting to a deprivation of liberty.” 
Lady Black commented that the issue would need to be determined once the appropriate case came before the court.
Secondly, Lady Hale raised the question of whether the conclusion reached by the court in relation to parental responsibility would apply to children under 16 who were deprived of their liberty. The court chose to leave the question unanswered on the basis that it was irrelevant to the facts of the present case. It is likely to be revisited should the appropriate case come before the court.
Finally, the court was keen to make clear that their decision was entirely in relation to the issue of deprivation of liberty and did not apply to other areas of decision-making. The question of whether parents are able to consent for their 16 and 17 year old children in other areas of decision-making will again need to be addressed should an appropriate case come before the court.