The Supreme Court's Judgment On The Limits Of The Exercise Of Parental Responsibility

• Law Firm: Weightmans
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Family and Matrimonial, Family Law, Trials & Appeals & Compensation
• Author: Ms Alexandra Johnstone
• Published date: 25 April 2023

The relationship between the rights of children in the context of the use of parental responsibility

The focus of this case is whether the confinement of a young person aged 16-17 years-old, found not to be Gillick competent, amounted to a deprivation of his liberty where his parents had consented to such confinement.

In a highly significant decision on deprivation of liberty, the Supreme Court has held that parental consent could not act as a substitute for the subjective requirement under Article 5 ECHR for valid consent to the deprivation.

The Supreme Court held that deprivation of liberty in this case was attributable to the state; as human rights exist to uphold the relationship between private persons and the state, there is consequently no scope for the operation of parental responsibility to authorise what would otherwise be an unlawful violation of a fundamental right of a child.

Overview

This case examines the relationship between the rights of children in the context of the use of parental responsibility, and the rights protected by Article 5 ECHR.

The child at the centre of proceedings, D, was 15 when this case was first heard in the Family Division of the High Court in 2015. His diagnosis included Asperger's and ADHD. He was confined in a hospital providing mental health services; the court did not consider this to be an unlawful deprivation of his liberty as he was confined with the consent of his parents. D was then later discharged to what in essence was a residential school, where he was under constant supervision and control. Again, this was authorised through the consent of his parents. However, in passing judgment, Keehan J stated that such parental consent could not circumvent an unlawful deprivation of liberty finding once D turned 16. He stated that this would fall under the jurisdiction of the Court of Protection. It was this element of the judgment which the Court of Appeal went on to consider.

Court of Appeal

The Court of Appeal considered whether the High Court was correct in its finding that parents could not consent to arrangements for a child aged 16-17, which would in the absence of such consent amount to an unlawful deprivation of liberty. The Strasbourg decision in Nielsen v Denmark 1988 proved a very persuasive precedent in this case. The Lord Justices applied the case for under 18s recognising that Gillick incapacity can remain applicable beyond age 16.

The court held that there was no magic in the age of 16, and that Gi...