As a result of a new Supreme Court judgment, local authorities will no longer be able to offer residential care, with parents’ agreement, to 16 and 17 year olds where they are supervised and not free to leave – unless there is a court order. This decision potentially affects many thousands of teenagers who are in supportive placements.

Until recently, parents and local authorities could rely on section 20 of the Children Act 1989 (where parents agree to a child becoming ‘looked after’) as a legal route for a 16 or 17 year old young person to live in a care setting where they are not free to come and go as they please.

In Wales, the equivalent to section 20 is section 76 of the Social Services and Well-being (Wales) Act 2014. You can read our guide about the use of section 20 / 76 here.

This is a very brief outline of this important Supreme Court judgment published this week – Re D [2019] UKSC 42. We hope to offer more in-depth analysis shortly.

The issue

Section 20 allows (and places a duty on) local authorities to offer accommodation (usually foster care) to children whose parents can’t care for them – with the parents’ consent – without any court being involved. The basic dilemma is that under section 20, children aged 16 and 17 usually only go into such accommodation of their own volition e.g. they are homeless or their parents can’t protect them from danger. Unlike under 16s, if the teenager wants to be in care, the parents don’t have a right to remove them. However, if the 16+ child lacks mental capacity to give informed consent to this, then what has happened is that their parents may be asked to agree on their behalf. In fact, most of these situations arise when a parent goes to social services for help. This is what happened with D, who has ADHD, Asperger’s syndrome, Tourette’s syndrome and a mild learning disability. When he was 15, his family were finding it too difficult to carry on caring for him at home. Since then, D appears to have been living in hospital and care settings that everyone agrees meet his needs. However, if the right place for someone to live is one where they, like D, are constantly supervised for their own safety and they can’t just open the front door and walk out, they are ‘deprived of their liberty’, as it’s termed in Article 5 of the European Convention on Human Rights – and the State must be able to justify that interference with their freedom.

In the case of adults, since a case in 2014, Surrey County Council v P; Cheshire West and Chester Council v P [2014] UKSC 19 (known as ‘Cheshire West’) even those people living in small community homes who are being deprived of their liberty and can’t consent to that, can only be lawfully detained if there is specific authorisation by the Court of Protection. It was thought (although open to question) that under-18s didn’t need that safeguard of going to court if their parents had agreed to the placement under s 20.

D’s case

D’s position was first considered in the courts when he was 15, when Mr Justice Keehan suggested (because of Cheshire West) that when he reached 16, his parents would no longer be able to agree to his placement. It should be noted that the evidence before the judge was that D gave no indication that he didn’t want to live where he was but, then again, he’d been assessed as unable to make that decision for himself. The wider problem was that if every 16 and 17 year old in England and Wales living in a supported setting of this type had to be made subject to a court application, this would have been enormously expensive and time-consuming. On the other hand, reaching 16 gives children so much more recognition of autonomy and rights than they had at 15, it doesn’t look right to treat a disabled 16-year-old differently from an 18-year-old. When D did turn 16, Keehan J heard a new application to the Court of Protection, and confirmed that the local authority could no longer rely on the parents’ agreement.

The appeals

However, the case went up to the Court of Appeal, where Sir James Munby (in a nutshell) said that because D’s parents’ parental reponsibility did not end when he turned 16, they could continue to make decisions for D, where necessary, right up to his turning 18. The Court of Appeal therefore reversed the High Court decision.

On to the Supreme Court, which has, in turn, disagreed with Sir James. Lady Hale and Lady Black both gave lengthy judgments, concluding that section 20 cannot be relied on by parents or authorities to accommodate a 16 or 17 year old in circumstances where they are not able to freely leave the premises.

How will this affect D and children like him?

D is now aged 20, so the judgment has no direct effect on him. And, in October next year, the law about mental capacity is due to change, with the introduction of ‘Liberty Protection Safeguards’ under the Mental Capacity (Amendment) Act 2019. Following lengthy consideration of the need for reforms by the Law Commission, this new system will, for the first time, extend to 16 and 17 year olds.

For the next year, however, where a 16 or 17 year old needs to live somewhere they are constantly supervised and not free to leave on their own, but they are unable to make a fully informed decison to accept that deprivation of their liberty, local authorities won’t be able to rely just on the parents’ consent, and should apply to court for authorisation.

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Feature pic : Evalia Josefina on Flickr (Creative commons – thanks)