There are often many complex interactions between legislation and case law – especially in the field of mental capacity and the Mental Capacity Act (2005) specifically. For this reason it is vital for professionals working in this area to ensure they are familiar with updates in case law to ensure those within the system are protected and best practice is upheld.
Parents, guardians and consent for DoLS authorisations
In a Court of Protection (CoP) case held before Mrs Justice Lieven in August 2022, the child ‘K’ is a 14-year-old boy presently residing in a Children’s Centre managed by the local authority. K has several conditions that impact his daily needs including, but not limited to epilepsy and autism.
To make matters more complicated, K’s parents passed away, leaving three legal guardians in place, assigned via the deceased mother’s will.
The decision(s) being addressed before the court concerned:
whether K is deprived of his liberty at the Wakefield Centre within the terms of Article 5 European Convention on Human Rights (‘ECHR’) and whether the testamentary guardians can consent to such a deprivation. Although the facts of the case concern testamentary guardians rather than natural parents, it has become clear as the case progressed that it would make no difference to the arguments if K’s parents were alive and themselves exercising parental responsibility.High Court decision by Mrs Justice Lieven DBE (Paragraph 4)
Zones of parental responsibility
This is a very important case concerning the DoLS for under-16s in terms of parental consent through the ‘zone of parental responsibility’ and the role of testamentary guardians in DoLS authorisations. It also provides a detailed history of relevant litigation on the matter, making it a valuable resource.
An old but still relevant case held before Sir James Munby (1986) found that if the young person had not demonstrated Gillick competency, then a parent can consent to DoLS on their behalf until the age of 18.
Meanwhile, a more recent case concerning Birmingham city council v D (2016) EWCOP 8 found that until the age of 16, based upon the individual’s presentation, cognition and needs, that consent for placement would fall within the parent’s responsibility.
Please note, that both of these are very much context dependant, taking account of the individual’s’ Gillick Competency, cognition and needs.
The role of parental consent remains a contested area, where contextual factors are pivotal to the outcome. Therefore, careful consideration must always be held, applying to the courts to safeguard and protect as needed. Amongst the historic legislation referenced, this case recognised Lady Hale and the Court of Appeal’s acceptance that broadly speaking a ‘parent’s right to custody of a child was a diminishing right as the child became older’ (paragraph 12) but should not be ‘determinative of the issue’ (Paragraph 13).
It should be noted that it may often be required for the COP to determine if inherent jurisdiction or equivalent should be applied, if appropriate.
Parental consent for DoLS
In her judgement, Mrs Justice Lieven states:
The conclusion I have reached is that a parent can consent to a deprivation of liberty within Storck component (b) for a child under 16, who lacks Gillick competence, where there is no dispute that such a deprivation is in the child’s best interests.’High Court decision by Mrs Justice Lieven DBE (Paragraph 47)
This is a key outcome in the case, and update in case law. According to the outcome of this case, parents can consent to DoLS for under-16s when the child lacks Gillick competence and there is no dispute around best interest.
This is a useful and valuable update to our understanding of DoLS authorisations in relation to parental consent and under-16s. While the DoLS process itself will soon be replaced with Liberty Protection Safeguards (LPS), this judgement will remain relevant and has lasting implications for professional practice.