Judgement on 16 and 17 year olds and their deprivation of liberty - R v D 2019

On Thursday 26th September, the Supreme Court published a crucial judgement which relates to children and young people and their rights around deprivation and restriction of their liberty. The Court held that parents of a 16 or 17 year old cannot consent to them being deprived of their liberty. You can read more about the earlier stages of this case in our case law digest which details the original case and the following appeal. This judgement will have a significant impact on the sector, as there are likely to be huge numbers of 16 and 17 year olds across the country who may have their liberty restricted in their homes or placements.

The judgement relates to a case dating from 2015 about a then 15 year old child, Child D, who had Asperger’s syndrome, ADHD and Tourette’s syndrome, as well as a mild learning disability. He had been cared for at home by his family until his needs increased and he was admitted to a psychiatric hospital when he was 14. As he was not free to leave and he had other restrictions on his freedom, the hospital trust applied to the High Court for approval of these restrictions. It was argued that because D’s parents consented to his confinement in the psychiatric hospital, it did not amount to a deprivation of liberty as described by Article 5 of the European Convention on Human Rights.

In the first instance it was suggested that because D’s parents consented to him being confined in the hospital, this was acceptable and did not amount to a deprivation of liberty. D was later moved to a residential placement. A further case was brought in 2016 which held that his parents’ consent was not sufficient as he had since turned 16. An appeal overturned this decision in 2017.

This case is particularly important as it provides a clear legal ruling and additional guidance on the deprivation of liberty of 16 and 17 year olds. Following the Mental Capacity (Amendment) Act coming into force earlier this year, a new system will be implemented to safeguard an individual’s liberty where they may lack the capacity to consent to a deprivation of their liberty. TIN and the CDC continue to work on the Code of Practice which will support the Liberty Protection Safeguards, helping to ensure that this system meets the needs and protects young people. Sign up to our newsletters to hear the latest news and developments on this issue.