- The framework within which Keehan J had to decide both Re D (A Child) (Deprivation of Liberty)  EWHC 922 (Fam),  1 FLR 142, and the present case, Birmingham City Council v D  EWCOP 8,  PTSR 1129, and within which the issues arising in this appeal fall to be considered, is the analysis of Article 5 set out by the Strasbourg court in Storck v Germany (2005) 43 EHRR 96, paras 74, 89, repeated in Stanev v Bulgaria (2012) 55 EHRR 696, paras 117, 120, and helpfully summarised in the Supreme Court by Baroness Hale of Richmond DPSC in Surrey County Council v P and others (Equality and Human Rights Commission and others intervening), Cheshire West and Chester Council v P and another (Same intervening)  UKSC 19,  AC 896 (Cheshire West), para 37:
“… what is the essential character of a deprivation of liberty? … three components can be derived from Storck …, confirmed in Stanev …, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is.”
I shall refer, by way of shorthand, to these three components as Storck components (a), (b) and (c); sometimes, as we shall see, they are referred to as Storck limbs (1), (2) and (3).”
This appeal overturns Keehan J’s decision that whilst a parent could consent to a foster care arrangement that involves a restriction of liberty for a child under 16 (which thus means that it does not require either Secure Accommodation or court authorisation), they cannot do so for a child aged 16-17 and 363 days.
Re D (A child) 2017
The Court of Appeal considered things very carefully and in huge detail. I don’t have time for the detailed analysis that the case merits, but it is an important decision, so people need to know it. The Court of Appeal felt, looking at things closely, that there was no magic in the age 16 when dealing with young people who lack capacity.
84.This has an important corollary. Given that there is no longer any ‘magic’ in the age of 16, given the principle that ‘Gillick capacity’ is ‘child-specific’, the reality…
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