Supreme Court decides that parents cannot lawfully consent to the imprisonment of their children

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In the long awaited decision of In the matter of D (A child) [2019] UKSC 42 a majority of the Supreme Court have decided that, whilst parental rights are wide, they do not include the right to give consent to a deprivation of a child’s liberty by the state in breach of the child’s article 5 rights. In doing so, David Lock QC explains that the majority affirmed a consensus statement from the Bar in a case in which he was involved (for the Appellant parents) in the Court of Appeal in 2011, namely RK v BCC, YB and AK [2011] EWCA Civ 1305; [2012] COPLR 146.  In that case all parties agreed “that an adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However, restrictions so imposed must not in their totality amount to deprivation of liberty. Deprivation of liberty engages the article 5 rights of the child and a parent may not lawfully detain or authorise the deprivation of liberty of a child”:  see Lady Hale’s speech at §32. The law has been through some interesting perambulations but has now ended up in the position that this approach is the correct approach. It follows that any public body which is placing a child in a care setting where the child is being deprived of his or her liberty will need to have a legal basis to do so and, in in doubt, should apply to the Court to affirm the lawfulness of the deprivation of liberty. The full judgments of the Supreme Court can be read here.

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