TRUST A v X AND OTHERS: THE GHOST OF NIELSEN RETURNS?
The case of Trust A v X and Others suggests that parents can authorise significant restrictions to be imposed on their disabled children. The court held that the parents of a D, a 15-year-old boy with autism and challenging behaviour, could consent to their son's placement in a locked psychiatric ward for over 15 months, whereas if such restrictions were placed on a child of that age without such disabilities, they would 'probably amount to ill treatment'. Focussing on two main areas of concern, it is argued that this decision is questionable and provides little assistance in determining whether parents can consent to their child's admission to hospital. First, the decision seems to be influenced by a misunderstanding of the basis on which the European Court of Human Rights (ECtHR) determines if a deprivation of liberty has arisen. Secondly, the court appears to have assumed that as D's parents were acting in his best interests, they were able to authorise extensive restrictions on their son, which is not the case. Such an approach renders disabled children's rights in this area almost non-existent and far exceeds the parental powers envisaged by the ECtHR in Nielsen v Denmark (1988), which has been subject to widespread criticism for failing to uphold the rights of the child.
Cardiff Law School, Cardiff University, Law Building, Museum Ave., Cardiff CF10 3AX, UK parkerch@cardiff.ac.uk.
Camilla H
CH
Parker
D000293:Adolescent; D002648:Child; D019988:Children with Disabilities; D005610:Freedom; D006806:Human Rights; D006801:Humans; D008297:Male; D010287:Parent-Child Relations; D010290:Parents
Article 5 European Convention on Human Rights; Deprivation of liberty; Nielsen v Denmark; Parental consent; Scope of parental responsibility; Zone of parental control