Parents' consent could make all children confinement lawful

Children have often been sent to psychiatric hospitals by their parents. In the first years of the present century, the European Court of Human Rights changed its mind about that practice, coming to criticise what it had once condoned. Recently, however, the Court of Appeal has taken a different view.

In Nielsen, where the mother of a 12-year-old boy had arranged for him to be admitted for psychiatric care, the ECtHR said the restrictions on him were no different from those to which many children are subject when they are admitted to hospital (Nielsen v Denmark [2000] ECHR 81, (2001) 33 EHRR 9).

The court held the boy hadn’t been deprived of liberty; that his mother’s act in having him confined was simply “a responsible exercise of her custodial rights in the interests of the child”, and that there is a broad range of such rights.

Later, however, in Storck, the ECtHR dismissed the suggestion that a young woman placed in a hospital by her father must have consented to her confinement (Storck v Germany [2005] ECHR 406, (2005) 43 EHRR 96). This decision narrowed the range of parental rights considerably.

That, at least, is the view of the Code of Practice to the Mental Health Act (MHA) (Department of Health, 2008, Code of Practice: Mental Health Act 1983).

In the zone

For the first time, the Code talks about the ‘zone of parental control’, which is founded on the idea that some interventions in the life of a child are so significant that the lawful authority they require is beyond a parent to provide. We are told, for example, that this may be so where a child is admitted to hospital for treatment for mental disorder (ibid, paragraphs 36.9-36.15. See: ‘Too young to decide’, Solicitors Journal 152/37, 30 September 2008).

In many cases, amendments to the MHA have taken this problem away. Now, where a 16- or 17-year-old requires treatment for mental disorder and is to be admitted to hospital as an ‘informal’ patient – in other words, without being formally detained – that can only be with his consent, and not with the consent of a parent (MHA, section 131(2)-(5)). If the young person refuses consent, he must be treated like an adult: if there is to be a hospital admission, it will have to be under ‘section’.

Right to liberty

The Zone of Parental Control was considered necessary - and the Nielsen decision cast into doubt - because the requirements of article 5 of the European Convention on Human Rights were now thought to loom sufficiently large. It was felt, you might say, that children and young people should have the right to liberty, too. Yet now, it seems that that, apparently uncontroversial, notion is in doubt.

Late last year, Lord Justice Munby looked at the ‘right to liberty’. He pointed out that the relevant passage – article 5(1) ECHR – allows a child to be deprived of liberty only for the purpose either of educational supervision or of bringing her before the competent legal authority. For Munby LJ, however, this fact didn’t limit the circumstances in which a child might lawfully be deprived of liberty; quite ?the reverse.

He said that “The framers of the [ECHR] must have had very clearly in mind the close and pervasive supervision and control exercised by parents – at least in relation to children who have not reached the age of discretion – yet it finds no reference in article 5.

The conclusion must surely be that the framers did not see the exercise of such parental powers as involving deprivation of liberty” (Cheshire West and Chester Council v P [2011] EWCA Civ 1257, at [27]).

If that analysis is correct – or if, at least, it comes to prevail – no matter how draconian it might be, almost no confinement of a child under-16 that is sanctioned by her parent will ever amount to deprivation of liberty, and those that do will, almost by definition, also be lawful under article 5.

And if that is right, we have travelled a very long way back; to the days before Storck, when Nielsen was king. As a result, we would have to change our view. We would have to say that the zone of parental control is very definitely dead; that, once again, parental consent can cure all manner of custodial ills; that having once, briefly, enjoyed it, many children no longer have the right to liberty.