Birmingham wins appeal over 16 and 17-year olds and deprivations of liberty

Birmingham City Council has successfully appealed a decision of the Court of Protection that a 16-year-old disabled child, who lacked capacity to make decisions about his residence and care, was deprived of his liberty in circumstances where his parents had agreed to the placement.

Mr Justice Keehan in the Court of Protection ruled that when the boy was aged 15, his parents could lawfully consent to what would have otherwise been a deprivation of liberty.

However, upon the boy turning 16 the judge decided last year that the parents could no longer give a lawful consent and that the council had to apply to the court for authorisation of a deprivation of liberty in respect of a 16-year-old in Section 20 care, even though his parents gave consent to his placement.

That decision potentially affected all children in care in settings restricting their liberty aged 16 and 17, Birmingham said.

The council appealed the decision on three grounds:

1. Mr Justice Keehan had erred in law in finding that a parent cannot consent to arrangements for a child who has attained the age of 16 which would otherwise amount to a deprivation of liberty;
2. He had erred in law in finding that the arrangements for D were attributable to the state;
3. The judge was wrong to find that D was deprived of his liberty “having regard to the procedures which ensure that the arrangements for 16 and 17 year old children, including those who lack capacity, are appropriately monitored.”

In D (A Child) [2017] EWCA Civ 1695 the Court of Appeal allowed the appeal on the first ground but dismissed the other two.

The President of the Court of Protection, Sir James Munby, concluded that parents could consent on behalf of their child to what would otherwise be a deprivation of liberty if the child lacked Gillick capacity.

In this case the child lacked Gillick capacity and the parents were able to consent, he found.

Alastair Gibbons, Executive Director for Children’s Services, said: “This is a complex legal matter and Birmingham City Council went to the Court of Appeal in order to clarify the law in this area. We welcome this judgement.”