Today, the Supreme Court handed down a judgment In the matter of D (A Child)  UKSC 42 involving the confinement of D, a young person aged 16, to residential care. As the child lacks capacity or competence to make decisions about his residence and care, the court considered whether the confinement amounted to a deprivation of his liberty for the purposes of ECHR, art 5 in circumstances where his parents were consenting to the confinement.
Held: The Supreme Court by a majority of 3 to 2 allows the appeal. Parental consent could not substitute for the subjective requirement under article 5 for valid consent to the deprivation. The procedural requirements of article 5 applied (and had in fact been complied with by the court authorisations.
The MCA does not override other common law and statutory provisions relating to 16 and 17-year-old children, but it does indicate an appreciation of the different needs of this age group. ECHR, Article 5 protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty. Clearly the degree of supervision to which D was subject at the placements was not normal for a child of 16 or 17. D’s living arrangements had to be compared with those of children of the same age without disabilities, and the fact that they were made in his best interests did not mean he was not deprived of his liberty.
David Wolfe QC acted for the Equality and Human Rights Commission, who intervened in this case.
For judgment, please download:  UKSC 42
For Court’s Press Summary, please download: Press