’The Zone of Parental Control, The ‘Gilded Cage’ And The Deprivation of a Child’s Liberty: Getting Around Article 5

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Abstract

Purpose: This paper will 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 sixteen 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.
Original languageEnglish
Pages (from-to)2-9
JournalTizard Learning Disability Review
Volume22
Issue number1
Early online date31 Jan 2017
DOIs
Publication statusE-pub ahead of print - 31 Jan 2017

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Keywords

  • Zone of Parental Control
  • Deprivation of Liberty
  • Children
  • Law
  • Learning Disability

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title = "’The Zone of Parental Control, The ‘Gilded Cage’ And The Deprivation of a Child’s Liberty: Getting Around Article 5",
abstract = "Purpose: This paper will 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 sixteen 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.",
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author = "Edmund Horowicz",
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N2 - Purpose: This paper will 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 sixteen 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.

AB - Purpose: This paper will 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 sixteen 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.

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