A judge’s ruling on parental consent could mean a sharp in increase in court applications, social workers fear.
In Birmingham City Council and D, Mr Justice Keehan concluded that the consent of the parents of a seriously disabled teenage boy could not justify restrictions on his freedom of movement.
The case concerned ‘D’, a 16 year old who had been diagnosed with Attention Deficit Hyperactivity Disorder, Asperger’s Syndrome and Tourette’s Syndrome at a “very early age”.
His parents, noted Mr Justice Keehan:
“…struggled for many years to care for him in the family home.”
He described them as “loving and dedicated parents” who “play a very close and important role in D’s life.”
Nevertheless, D’s disabilities led to behave in very challenging ways – becoming aggressive, paranoid or anxious at times, and badly affecting his younger brother. D also responded poorly to medication.
Eventually he was moved into a secure hospital. Last year, the local authority applied for legal authorisation of the restrictions which had been placed on his freedom of movement due to his disabilities. Did these constitute what is legally termed a deprivation of liberty?
In a ruling last year, Mr justice Keehan concluded that they did not because D’s parents had consented. At the time, he was 15.
But the case returned to the Judge following the boy’s 16th birthday. By that point, he had been moved into a residential placement for people with disabilities. Nevertheless, it was clear that he still lacked ‘capacity’ – the ability to make decisions about his own welfare.
Representing D, the Official Solicitor argued that his parents could no longer consent to the restrictions placed upon him.
The Council-funded placement was arranged under section 20 of the Children Act 1989, which requires parental consent. This was emphasised by the counsel for the local authority but the Judge, pointed to the fact that 16 and 17 year-old young people had a distinct status within the law and fell under the provisions of the Mental Capacity Act.
“I am entirely persuaded that Parliament has on numerous occasions…chosen to distinguish the legal status of those who have not attained the age of 16 years, those aged 16 and 17 and, finally, those who have attained their majority.”
The Judge continued:
“Precisely because of his disabilities and vulnerability, it is vital that D is accorded the same status as a 16-year-old without any disabilities.”
During the case, the local authority had said that a need to seek deprivation of liberty authorisations for 16 and 17 year-olds would be an additional strain upon the already limited resources of councils across the country. But Mr Justice Keehan stressed:
“The protection of D’s Article 5 rights [to liberty, under the European Convention on Human Rights] must not and, in my judgment, cannot be overridden by consideration of the resource implications for state bodies including this local authority.”
Trainer Daisy Bogg told Community Care:
“The implications of this ruling are potentially huge because we’re going into an area the system’s not currently well equipped to deal with.”
The new ruling is here.