The zone of parental control, the “gilded cage” and the deprivation of a child’s liberty: getting around Article 5

Abstract

Purpose

The purpose of this paper is to specifically analyse whether parents should have the legal authority to authorise a deprivation of liberty for children with a learning disability. As a result of parental consent being recognised as holding legal authority, these children have their right to liberty under Article 5 engaged. It will be argued that the courts’ failure to support this view stems from the confusing concept of the “zone of parental control”.

Design/methodology/approach

A doctrinal methodology is used, examining domestic law and the European Convention on Human Rights (ECHR), with analysis of relevant literature.

Findings

Decisions regarding deprivation of liberty in children under the age of 16 should undoubtedly include parental consent. The concern expressed here is the sovereignty of parental consent over all else. The law is confusing. In one respect rights under the ECHR are universal. However, both UK and European courts have accepted the premise that it is entirely within the zone of parental control to effectively deprive a child of liberty without procedural or judicial review. Furthermore, there are wider potential issues for children being considered to be deprived of liberty following Cheshire West.

Originality/value

The paper is a discussion piece that is critical of the existing law and uses the literature and original opinions to recommend an alternative approach.

Citation

Horowicz, E.M. (2017), "The zone of parental control, the “gilded cage” and the deprivation of a child’s liberty: getting around Article 5", Tizard Learning Disability Review, Vol. 22 No. 1, pp. 2-9. https://doi.org/10.1108/TLDR-05-2016-0014