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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Birmingham City Council v D [2016] EWCOP 8 (21 January 2016) URL: http://www.bailii.org/ew/cases/EWCOP/2016/8.html Cite as: [2016] WLR(D) 143, [2016] EWCOP 8, [2016] PTSR 1129 |
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Strand, London, ![]() ![]() |
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B e f o r e :
____________________
![]() ![]() ![]() ![]() ![]() | Applicant |
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-and- |
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![]() (BY ![]() |
First Respondent |
|
-and- |
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![]() ![]() |
Second Respondent |
____________________
Victoria
Flowers, Miss Anita Rao and Miss Eleanor Sibley (instructed by
Birmingham
City
Council)
for the Applicant
Mr Alexander Ruck Keene (instructed by Cartwright King Solicitors) for the First Respondent
Hearing dates:
16 and 17 November 2015
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Mr Justice Keehan:
Introduction
Application and Issues
a)D's
parents may consent to his confinement, thus that
which
might otherwise result in a
deprivation
of liberty,
does
not; and
b)D
resides at his residential unit under the auspices of s20 Children Act 1989 accommodation to
which
his parents agreed. Therefore his placement and confinement both at the residential unit and his school are not imputable to the state but rather are at the request of, and
with
the consent of, his parents.
a)D's
parents cannot consent to his confinement now that he has attained the age of 16 years; and
b) that notwithstanding thatD
is looked after by the local authority pursuant to s20, the circumstances of his confinement are plainly and clearly imputable to the state
via
the acts of the local authority. The residential unit and the school
D
attends are paid for by the authority. Moreover, the local authority took the lead in identifying this establishment and
devised
and/or approved the regime by
which
![]()
D
is cared for in the residential unit and in school.
a) no parent in any circumstances may consent to the confinement of their child,whatever
their age, in circumstances
which
absent a
valid
consent
would
amount to a
deprivation
of liberty; and
b) on that basis mydecision
in Trust A
v
X
was
![]()
wrong
insofar as I held that
D's
parents could consent to his confinement in Hospital B
when
he
was
under 16 years of age: see paragraphs 52-66 of that judgment.
Background
"D
has complex needs and it
was
essential that the local authority proceeded carefully so as to ensure that the right placement
was
found; that is a placement that the local authority considered
would
meet his needs and
would
be acceptable to his parents. A significant amount of
work
has been required by the local authority in order to ensure that a placement
was
found for
D
![]()
which
the local authority considered
was
the right placement for him and I believe that, having regard to the matters referred to above, the local authority has proceeded to arrange a new placement for
D
![]()
within
a reasonable time-frame. "
"D
has his own bedroom. All external
doors
are locked and
D
is not allowed to leave the premises unless it is for a planned activity.
D
receives one-to-one support throughout his
waking
![]()
day,
and at night, the ratio of staff to students is 2:1. He is not initially allowed unaccompanied access to the community.
D
attends school every
weekday
from
8:45am
to 2pm. He then eats his lunch on return to House A. He
will
then get changed and partake in leisure activities. Currently every Thursday afternoon
D
attends swimming and
will
eat his
dinner
outside of House A
with
staff.
House A has all entrances and exits to the building locked by staff.When
![]()
wishing
to go out into the garden
D
needs to request a staff member to open the
door.
These
doors
are sometimes left open
when
there is a group leisure activity in the garden.
D
![]()
will
be having contact
with
his parents each Saturday for up to 5 hours. Currently his parents have been
visiting
for 3 hours as
D
![]()
does
get increasingly anxious
during
this time. There have been no significant issues since
D's
move to Placement B."
The Official Solicitor's Submissions
"pressure on resources and even considerations of increaseddelay
are not material to a
determination
of
whether
there are adequate safeguards to satisfy Article 5."
"the complex interplay of rights that are in play in relation to thosewho
are under 18 is perhaps most neatly summed up at paragraph 19.48 of the 2015 Mental Health Act 1983 Code of Practice:
The child's right to liberty under Article 5 ECtHR,which
should be informed by Article 37 of the United Nations Convention on the Rights of the Child
The parents' right to respect for the right to family life under Article8
ECtHR,
which
includes the concept of parental responsibility for the care and custody of minor children, and
The child's right to autonomywhich
is also protected under Article
8
ECtHR.
In seeking to reach a principledway
in
which
to address the balance between these three, it is
vitally
important to remember the implications for a child of a finding that they are not
deprived
of their liberty. In particular, the child
will
therefore be
deprived
of the rights to:
Challenge the lawfulness of theirdetention
before an independent tribunal pursuant to Article 5(4); and
In the context of adeprivation
of liberty
which
– as here – is on the basis of the child's mental
disorder,
of a regular review of
whether
the nature and severity of that
disorder
![]()
warrants
continued
detention,
pursuant to Article 5(1)(e) read together
with
Article 5(4).
In otherwords,
the child
will
lose the right to the "periodic independent check on
whether
the arrangements made for them are in their best interests" that Lady Hale identified in Cheshire
West8
as necessary in the case of those individuals
with
![]()
disabilities
in the position of P, MIG (
who
at the time of the proceedings before Parker J
was
17) and MEG (
who
![]()
was
18), "as a recognition of their equal
dignity
and status as human beings like the rest of us." "
"The remit of our review extends to consideringwhether
young people (not children aged 15 or younger) should fall
within
our proposed protective care scheme. This
would
enable
deprivations
of liberty to be authorised for such people, as
well
as provide oversight arrangements for their care and treatment. Arguably, the present law introduces unjustifiable inequalities amongst age groups, and potentially places young people at a
distinct
![]()
disadvantage
compared to those over 18. The
development
of human rights law has contributed to the increasing recognition of the need to give greater
weight
to the
views
of young people. This is beginning to be reflected in law in relation to the admission of young people under the Mental Health Act.
We
provisionally consider that the
deprivation
of liberty of those aged 16 and 17 should come under our scheme.
We
![]()
do
not consider that the alternative provisions, such as section 25 of the Children Act, provide an adequate basis for
dealing
![]()
with
16 and 17 year olds
who
satisfy the "acid test". […].
It is also a matter of concern that judicial confidence is being placed in the "zone of parental control"which
remains a poorly understood and ill-
defined
concept. It is a concept introduced in the 2008
version
of the Mental Health Act Code of Practice and
was
renamed the "scope of parental responsibility" in the current
version.
It is emphasised that
whether
a particular intervention can be undertaken on the basis of parental consent
will
need to be assessed in the light of the particular circumstances of the case, and practitioners
will
need to consider a range of factors. These include the age, maturity and understanding of the child or young person. The implication of the case law is that a young person
who
lacks capacity may be left
without
the protections guaranteed by article 5 as a result of this concept.
We
![]()
would
![]()
welcome
further
views
on the appropriateness of the concept of parental control in relation to young people, and evidence of how it is being used."
a) the hospitalisation of the childwas
taken by the mother in her capacity as holder of parental rights; and
b) Article 5was
therefore not applicable in so far as it is concerned
with
![]()
deprivation
of liberty by the authorities of the state.
"It should be observed at the outset that family life in the Contracting States encompasses a broad range of parental rights and responsibilities in regard to care and custody of minor children. The care and upbringing of children normally and necessarily require that the parents or an only parentdecide
![]()
where
the child must reside and also impose, or authorize others to impose,
various
restrictions on the child's liberty. Thus the children in a school or other educational or recreational institution must abide by certain rules
which
limit their freedom of movement and their liberty in other respects. Likewise a child may have to be hospitalised for medical treatment. Family life in this sense, and especially the rights of parents to exercise parental authority over their children, having
due
regard to their corresponding parental responsibilities, is recognized and protected by the Convention, in particular by Article
8
(art.
8).
Indeed the exercise of parental rights constitutes a fundamental element of family life (see the R
v.
the United Kingdom judgment of
8
July 1987, Series A no. 121-C, p. 117, para. 64).
Article 5 (art. 5) therefore is not applicable in so far as it is concernedwith
![]()
deprivation
of liberty by the authorities of the State, but the question remains, however,
whether
the Article is applicable in the circumstances of the present case in regard to such restrictions on the applicant's liberty as resulted from the exercise of the mother's parental rights…
…The Court is satisfied that the mother,when
taking her
decision
on the basis of medical advice from her family
doctor
and from Professor Tolstrup, had as her objective the protection of the applicant's health (see paragraphs 15 and 19-20 above). This is certainly a proper purpose for the exercise of parental rights…
The Court accepts,with
the Government, that the rights of the holder of parental authority cannot be unlimited and that it is incumbent on the State to provide safeguards against abuse. However, it
does
not follow that the present case falls
within
the ambit of Article 5 (art. 5). The restrictions imposed on the applicant
were
not of a nature or
degree
similar to the cases of
deprivation
of liberty specified in paragraph 1 of Article 5 (art. 5-1)….
"Many of these article 5(1)(e) cases also raise issues as to express or implied consent (to admission to a psychiatricward
or old people's home). Some of the earlier cases seem questionable today insofar as they relied on "parental rights" (especially Nielsen,
which
![]()
was
a nine-seven
decision
that the admission to a psychiatric
ward
of a twelve-year old boy
was
not a
deprivation
of liberty, because of his mother's "parental rights"). Storck has, I think, sent out a clear message indicating a
different
approach to the personal autonomy of young people (although the unfortunate claimant in that case
was
18 years of age at the time of her compulsory medication in a locked
ward
in the clinic at Bremen, for
which
she
was
made an exceptionally large award for non-pecuniary loss)."
"Indeed, I have mydoubts,
for Nielsen, on this point, is
widely
perceived today as being questionable. And in saying this I emphasise that I have in mind not only my own observations in JE
v
![]()
DE
(By his Litigation Friend the Official Solicitor), Surrey County
Council
and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, but more importantly the
views
of
various
scholars and of Lord
Walker
of Gestingthorpe in Austin
v
Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] AC 564, at para [45]. As Mr Sherman asks rhetorically,
why
should the law in its application of Article 5
distinguish
between two young persons
who
are, and always
will,
function in essentially the same
way
and at the same level just because one is under
while
the other is over the age of majority? But these are not matters I need to consider further, and it is better, as it seems to me, to leave them to be considered in a case
where,
unlike here, the point actually arises; that is, in a case
where
there is, the Nielsen point apart, a
deprivation
of liberty."
"The Court recalls at the outset that in Nielsenv
![]()
Denmark
it found that Article 5
was
not applicable to the hospitalisation of the applicant as that hospitalisation
was
a responsible exercise by the applicant's mother of her custodial rights in the interest of the child (paras 61-73). That reasoning cannot be transposed to the present case as, although the local authority had custodial rights over the applicant by
virtue
of the care order
which
![]()
was
still in force, the orders placing the applicant in secure accommodation
were
made by the courts – the
Birmingham
Magistrates Court on 23 November 1995 and the Sutton Coldfield Magistrates Court on 23 February 1996 (
varied
by the High Court on 18 March 1996). There is no question of the respective courts having custodial rights over the applicant, and so Article 5 applies in the present case. "
"The Court recalls that in its Nielsenv
![]()
Denmark
judgment, it found that Article 5
was
not applicable to the hospitalisation of the applicant as that hospitalisation
was
a responsible exercise by the applicant's mother of her custodial rights. That reasoning cannot be transposed to the present case as the orders placing the applicant in St Patrick's
were
made by the High Court,
which
court
did
not have custodial rights over the applicant. Article 5 therefore applies in the present case. "
"Bearing these elements in mind, in particular the fact that the Cantonal Appeals Commission placed the applicant in the foster home in her own interests in order to provide herwith
the necessary medical care, as
well
as satisfactory living conditions and hygiene, and also taking into consideration the comparable circumstances of the case of Nielsen
v
![]()
Denmark,
the Court concludes that in the circumstances of the present case the applicant's placement in the foster home
did
not amount to a
deprivation
of liberty
within
the meaning of Art.5 (1), but
was
a responsible measure taken by the competent authorities in the applicant's interests. Accordingly, Art 5(1) is not applicable in the present case. "
"This reference to the benevolent purpose of the placement is inconsistentwith
the later Grand Chamber
decisions
of Creanga
v
Romania [2012] 56 EHRR 361, para 93, and Austin
v
United Kingdom [2012] 55 EHRR 359, para 58. There it
was
stated that an underlying public interest motive
"has no bearing on the questionwhether
that person has been
deprived
of his liberty… The same is true
where
the object is to protect, treat or care in some
way
for the person taken into confinement, unless that person has
validly
consented to
what
![]()
would
otherwise be a
deprivation
of liberty" (para 58)."
"71. The Court recalls that, in order todetermine
![]()
whether
there has been a
deprivation
of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a
whole
range of factors arising in a particular case such as the type,
duration,
effects and manner of implementation of the measure in question.
74. However, the notion ofdeprivation
of liberty
within
the meaning of Art.5(1)
does
not only compromise the objective element of a person's confinement to a certain limited place for a not negligible length of time. Individuals can only be considered as being
deprived
of their liberty, if, as an additional subjective element, they have not
validly
consented to the confinement in question. The Court notes that in the present case, it is
disputed
between the parties
whether
the applicant had consented to her stay in the clinic.
89.
The Court recalls that the question
whether
a
deprivation
of liberty is imputable to the State relates to the interpretation and application of Art.5(1) of the Convention and raises issues going to the merits of the case,
which
cannot be regarded merely as preliminary issues. It agrees
with
the parties that in the present case, there are three aspects
which
could engage Germany's responsibility under the Convention for the applicant's
detention
in the private clinic in Bremen. First, the
deprivation
of liberty could be imputable to the state
due
to the
direct
involvement of public authorities in the applicant's
detention.
Secondly, the State could be found to have
violated
Art5(1) in that its courts, in the compensation proceedings brought by the applicant, failed to interpret the provisions of civil law relating to her claim in the spirit of Art 5. Thirdly, the State could have
violated
its positive obligations to protect the applicant interferences
with
her liberty carried out by private persons."
"122. …The Court considers that the restrictions complained of by the applicant are the result ofvarious
steps taken by public authorities and institutions through their officials, from the initial request for his placement in an institution and throughout the implementation of the relevant measure, and not of acts or initiatives by private individuals. Although there is no indication that the applicant's guardian acted in bad faith, the above considerations set the present case apart from Nielsen, in
which
the applicant's mother committed her son, a minor, to a psychiatric institution in good faith,
which
prompted the Court to find that the measure in question entailed the exercise of exclusive custodial rights over a child
who
![]()
was
not capable of expressing a
valid
opinion.
130. As to the subjective aspect of the measure, it shoudbe
noted that, contrary to the requirements of
domestic
law, the applicant
was
not asked to give his opinion on his placement in the home and never explicitly consented to it. Instead, he
was
taken to Pastra by ambulance and placed in the home
without
being informed of the reasons for or
duration
of that measure,
which
had been taken by his officially assigned guardian. The Court observes in this connection that there are situations
where
the
wishes
of a person
with
impaired mental faculties may
validly
be replaced by those another person acting in the context of a protective measure and that it is sometimes
difficult
to ascertain the true
wishes
or preferences of the person concerned. However, the Court has already held that the fact that a person lacks legal capacity
does
not necessarily mean that he is unable to comprehended his situation. In the present case,
domestic
law attached a certain
weight
to the applicant's
wishes
and it appears that he
was
![]()
well
aware of his situation. The Court notes hat at least from 2004, the applicant explicitly expressed his
desire
to leave the Pastra Social Care Home, both to psychiatrists and through his applications to the authorities to have his legal capacity restored and to be released from his guardianship." (emphasis supplied).
"148. As to the facts in Nielsen, the other case relied on by the Government, the applicant in that casewas
a child, hospitalised for a strictly limited period of time of only five and a half months, on his mother's request and for therapeutic purposes. The applicant in the present case is a functional adult
who
has already spent more than seven years in the Kė
dainiai
Home,
with
negligible prospects of leaving it. Furthermore, in contrast to this case, the therapy in Nielsen consisted of regular talks and environmental therapy and
did
not involve medication. Lastly, as the Court found in Nielsen, the assistance rendered by the authorities
when
![]()
deciding
to hospitalise the applicant
was
"of a limited and subsidiary nature" (§ 63),
whereas
in the instant case the authorities contributed substantially to the applicant's admission to and continued residence in the Kė
dainiai
Home."
In relation to the third limb of Storck, namely imputability to the state, the court said:
"151. Lastly, the Court notes that although the applicant's admissionwas
requested by the applicant's guardian, a private individual, it
was
implemented by a State-run institution – the Kė
dainiai
Home. Therefore, the responsibility of the authorities for the situation complained of
was
engaged (see Shtukaturov, cited above, § 110)."
"134. The Court further notes that in Nielsenv
![]()
Denmark
28 November 1988 67 Series A no. 144, the applicant
was
an under-age child, hospitalised for the strictly limited period of only five and a half months, at his mother's request and for therapeutic purposes. The applicant in the present case
was
a fully functioning adult. Furthermore, in contrast to instant case, the therapy in Nielsen consisted of regular talks and environmental therapy and
did
not involve medication. Lastly, the Court found in Nielsen that the assistance rendered by the authorities on the applicant's hospitalisation
was
"of a limited and subsidiary nature",
whereas
in the instant case the authorities appear to have contributed substantially to the applicant's admission to the hospital and her continued hospitalisation.
135. As to the subjective aspect of the measure, the Court notes that at the time of her hospitalisation the applicantwas
of an age and that there is no evidence in the file that she lacked legal capacity to
decide
matters for herself. However, according to the information received by the Government on 16 October 2010 from the management of the Sapoca Psychiatric Hospital, and notwithstanding the applicant's statement that she
was
told by the medical staff that she had signed the hospitalisation papers,
Dr
I obtained the informed consent for the applicant's hospitalisation and treatment from the applicant's mother on account of the applicant's clinical condition (see paragraph 24 above). In this context the Court considers that it is reasonable to assume that the applicant
did
not
directly
consent to her hospitalisation and treatment."
a) these are the only caseswhere
the ECtHR has alluded to the concept of substituted consent;
b) it is implicit, if not explicit, from the quoted passages above that the court in each of those considered Nielsen in terms of the objective First Limb of the Storck test before then turning to consider the subjective Second Limb of Storck, namely avalid
consent. In this latter context no reference is made to Nielsen.
"3.56 TheDiscussion
Paper also contained three questions based on a comment by the European Court in the Stanev case:
"The Court observes in this connection that there are situationswhere
the
wishes
of a person
with
impaired mental faculties may
validly
be replaced by those of another person acting in the context of a protective measure and that it is sometimes
difficult
to ascertain the true
wishes
or preferences of the person concerned."
3.57 The reference to 'valid
replacement' had led us to
wonder
if it might be possible to construct provisions of
domestic
law based on the premise that consent by a surrogate
decision
maker (an attorney or guardian) prevents a given set of restrictions from amounting in law to
deprivation
of liberty. This
would
occur because the '
valid
replacement'
would
constitute consent. Thus, the subjective requirement before there can be a
deprivation
of liberty, according to the jurisprudence of the Strasberg Court,
would
not be met."
The Commission concluded as follows at paragraph 3.59:
"We
![]()
did
not receive any responses
which
favoured
development
of provisions based around this observation form the European Court of Human Rights. Having reflected further on the matter,
we
![]()
do
not think it
would
be sensible to base recommendations on this isolated passage from the European Court. In practice, it
would
have no real effect on guardians, since guardianship
would
probably require to include an appropriate power (perhaps 'to consent to residence in conditions
which
![]()
would
otherwise amount to a
deprivation
of liberty'). Little
would
be gained by such a provision, and confusion
would
be likely. In the longer term, if models of supported
decision-making
become more established in the
domestic
laws of the Member States of the
Council
of Europe, it may be that the European Court of Human Rights
will
explore the extent, if any, to
which
the subjective element of
deprivation
of liberty (consent by the person) can fit
with
these other models, but that
will
take time to address and
develop."
"It is clear that not everydeprivation
of liberty comes
within
the ambit of article 5. Parents are given a
wide
measure of
discretion
in the upbringing of their children. This
was
recognised by the European Court in Nielsen
v
![]()
Denmark
II EHRR 175, 191-192 para 61, the case of a child committed to a psychiatric
ward
at the request of his mother…
I recognise the force of the principles set out in thedecisions
in Nielsen's case. Nielsen's case and Family T's case. There is a point, however, at
which
one has to stand back and say; is this
within
ordinary acceptable parental restrictions upon the movements of a child or
does
it require justification? In Guzzardi
v
Italy [1980] 3 EHRR 333,362-363, the court said:
"92. The court recalls that in proclaiming the 'right to liberty', paragraph 1 of article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should bedispossessed
of this liberty in an arbitrary fashion… In order to
determine
![]()
whether
someone has been '
deprived
of liberty'
within
the meaning of article 5, the starting point must be his concrete situation and account must be taken of a
whole
range of criteria such as the type,
duration,
effects and manner of implementation of the measure in question.
93. Thedifference
between
deprivation
of and restriction upon liberty is none the less merely one of
degree
or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the court cannot avoid making the selection upon
which
the applicability or inapplicability of article 5
depends."
"
"The analysis emphasises that plainly not all restrictions placed on the liberty of children constitutedeprivation.
Obviously parents have a right and a responsibility to restrict the liberty of their children, not only for protective and corrective purposes, but also sometimes for a punitive purpose. So acting they only risk breaching a child's article 5(1) rights if they exceed reasonable bounds. Equally parents may
delegate
that right and responsibility to others. Every parent
who
sends a child to a boarding school
delegates
to the head teacher and his staff. A local authority may even send a child to a school that provides 52-
week
boarding facilities. Then restrictions on liberty imposed by the school
do
not amount to a breach of the pupils rights under article 5(1) unless the school betrays its responsibilities to the family.
For these reasons I accept Mr Garnham's first and bold submission that the order of 30 Junedid
not breach K's article 5 rights since the
deprivation
of liberty
was
a necessary consequence of an exercise of parental responsibility for the protection and promotion of his
welfare.
I am not
deterred
by Mr Ryder's skeleton: "It is accepted that the purpose of secure accommodation is to restrict liberty" and his subsequent rejection of the opportunity to adopt Mr Garnham's submissions."
"Mr Garnham's first submission on behalf of the Secretary of State for Healthwas
that K had not been
deprived
of his liberty for the purposes of article 5. The local authority had simply exercised parental responsibility for him in his own best interests. There
was
some interesting
discussion
about the
way
in
which
parents restrict the movements of their children from time to time by, for example, putting young children to bed
when
they
would
rather be up or "grounding" teenagers
when
they
would
prefer to be partying
with
their friends, or sending children to boarding schools, entrusting the schools
with
authority to restrict their movements. All this reflects the normal
working
of family life in
which
parents are responsible for bringing up, teaching, enlightening and
disciplining
their children as necessary and appropriate, and into
whish
the law and local authorities should only intervene
when
the parents' behaviour can fairly be stigmatised as cruel or abusive.
It is not necessary todeal
![]()
with
any argument that such parental behaviour might constitute an interference
with
a child's liberty, or contravene his "human rights". No such absurdity
was
advanced.
What
however
does
arise for
decision
is
whether
![]()
what
I have
described
as normal family life goes anywhere near
what
the local authority is empowered to
do
by a secure accommodation order.
In short, although normal parental control over the movements of a child may be exercised by the local authority over a child in its care, the implementation of a secure accommodation orderdoes
not represent normal parental control."
"The consensus is to this effect: Thedecisions
of the European Court of Human Rights in Neilson
v
![]()
Denmark
[1988] 11EHRR 175 and of this court in Re K [2002] 2WLR 1141
demonstrate
that an adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However restrictions so imposed must not in their totality amount to
deprivation
of liberty.
Deprivation
of liberty engages the Article 5 rights of the child and a parent may not lawfully
detain
or authorise the
deprivation
of liberty of a child. "
"While
there is a subjective element in the exercise of ascertaining
whether
one's liberty has been restricted, this is to be
determined
primarily on an objective basis. Restriction or
deprivation
of liberty is not solely
dependent
on the reaction or acquiescence of the person
whose
liberty has been curtailed. Her or his contentment
with
the conditions in
which
she finds herself
does
not
determine
![]()
whether
she is restricted in her liberty. Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It
does
not
depend
on one's
disposition
to exploit one's freedom. Nor is it
diminished
by one's lack of capacity.
The questionwhether
one is restricted (as a matter of actuality) is
determined
by comparing the extent of your actual freedom
with
someone of your age and station
whose
freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state
with
a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.
All children are (or should be) subject to some level of restraint. This adjustswith
their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as
would
any child or young person of a similar age, their liberty is – and must remain- a constant feature of their lives, the restriction amounts to a
deprivation
of liberty.
Very
young children, of course, because of their youth and
dependence
on others, have – an objectively ascertainable- curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are
deprived
of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent.
While
they
were
![]()
very
young, therefore, MIG and MEG's liberty
was
not restricted. It is because they can- and must – now be compared to children of their own age and relative maturity
who
are free from
disability
and
who
have access (
whether
they have recourse to that or not) to a range of freedoms
which
MIG and MEG cannot have resort to that MIG and MEG are
deprived
of liberty."
He concluded in respect of the Second Limb of Storck as follows at paragraph 81:
"The subjective element indeprivation
of liberty is the absence of
valid
consent to the confinement in question: see para 117 of Stanev. This must be
distinguished
from passive acquiescence to the
deprivation,
particularly
where
that stems from an inability to appreciate the fact that one's liberty is being curtailed. In para 118 (c) the court said that
deprivation
of liberty occurs
when
an adult is incapable of giving his consent to admission to a psychiatric institution, even though he had never attempted to leave it. And as Baroness Hale
DPSC
has pointed out (in para 24 of her judgment) the court also said in para 119 that the right to liberty
was
too important to be lost simply because a person had given himself up to
detention,
especially
where
he is legally incapable of consenting to or
disagreeing
![]()
with
it. "
a) s131 Mental Health Act 1983, provides that a capacitous patient aged 16 or 17 years of age may consent or not consent, as the case may be, to the making of arrangements including admission to a hospital for treatment for a mentaldisorder;
b) s8 of the Family Law Reform Act 1969 provides that a minorwho
has attained the age of 16 years may give consent to any surgical, medical or
dental
treatment
which
shall be as effective as it
would
be if he
were
of full age;
c) s9(6) Children Act 1989 provides that no court may make a s8 orderwhich
is to have effect for a period
which
![]()
will
end after the child has reached the age of 16 unless it is satisfied that the circumstances of the case are exceptional;
d)
s20(11) Children Act 1989 provides that a 16 or 17 year old young person may consent to his or her accommodation by a local authority;
e) s31(3) Children Act 1989 provides that a care order or a supervision order may not be made in respect of a childwho
has reached the age of 17 (or 16 in respect of a child
who
is married);
f) s2 (5) Mental Capacity Act 2005 provides that, the powers under the act are exercisable in respect of a personwho
has achieved the age of 16 years but not those
who
are under the age of 16 (this is subject to exceptions, immaterial for present purposes, eg the Court of Protection can exercise powers over a child of 15 or below in relation to their property and affairs
where
the court considers it likely that the material incapacity
will
continue past their majority: s.18).
"Although the Court of Protection has jurisdiction todeal
![]()
with
the property and affairs of a minor it rarely exercises that jurisdiction. It
was
an important aspect of the Children Act 1989 that
disabled
children
were
brought firmly into the general law relating to children. However,
whilst
a "child" for its purposes is a person under 18 no care or supervision order can be made in relation to a child of 17 (or 16, if married); public protective intervention is therefore unavailable to those aged 17 (or 16, if married). In the private law field, orders can only be made or continued once a child has reached 16 if there are "exceptional" circumstances (
which
![]()
would
clearly include incapacity).
The principle of normalisationwould
suggest that an incapacitated person should be placed in the same position as any other person of the same age. It
would
satisfy both this principle and the philosophy of the Children Act to leave private
disputes
about the administration of property or the care or
welfare
of incapable minors to be resolved under the Children Act scheme, and make any new jurisdiction available only to those aged 18 and over. This, however,
would
leave an undesirable one (or two, if married) year gap
during
![]()
which
public intervention to protect an incapacitated minor
would
only be available under the surviving inherent jurisdiction. One solution is to
differentiate
between the ages for public and private intervention under the new jurisdiction. The other is to have one age, namely 16, as the qualifying age for the new jurisdiction but accept some overlap between it and child law. The
difficulty
![]()
with
this is the existing parental responsibility (and the courts' powers) to make at least some
decisions
on behalf of at least some children up to the age of 18.7 Can it then be acceptable to have two jurisdictions applicable in the same case
which
may employ
different
![]()
definitions
of capacity,
different
procedures, and
different
principles of intervention? An alternative solution
would
be to allow public law intervention under the Children Act 1989 in respect of incapacitated children.
We
tend to think that any overlap
will
not produce
difficulties
in practice. Further, if there
were
a properly
defined
jurisdiction for
decision-making
on behalf of mentally incapacitated adults, it might be more appropriate in principle for 16 and 17 year olds to be considered under that jurisdiction rather than as if they
were
young children. Hence
we
provisionally propose that:
1. The new jurisdiction should extend to persons aged 16 and over."
"Although the focus of our project has always been adults.who
lack
decision-making
capacity,
we
provisionally proposed in our 1993 consultation papers that any new jurisdiction should apply to those aged 16 and over.
We
explained that a number of the statutory provisions in the Children Act 1989
do
not apply to those in the 16-18 age group, or only apply in "exceptional" circumstance. For some purposes in the health care field, patients aged 16 and 17 are treated as if they
were
of full age.' On a practical level, respondents confirmed that both statutory and
voluntary
sector service agencies tend to have special arrangements for those aged 16 and over,
with
an emphasis on preparations for independent adult life, making suitable long-term provision if necessary. It is often not at all appropriate simply to continue to offer services
designed
to support younger children
within
their families. If continuing substitute
decision-making
arrangements are needed by someone aged 16 or 17 it may
well
be because that young person lacks mental capacity and not because he or she is under the age of legal majority. In cases
where
legal proceedings are required, so that
disputes
can be resolved or legally effective arrangements made, it
would
be
wasteful
to require two sets of legal proceedings to be conducted
within
a short time period
where
it is obvious that the problem
which
has to be resolved
will
not
disappear
![]()
when
the person concerned reaches 18. Respondents, including those
who
specialise in
work
![]()
with
young adults
with
mental
disabilities,
supported our proposal to bring those aged 16 and over
who
lack mental capacity
within
the new statutory scheme. Most agreed that the resultant overlap
with
the Children Act 1989 and the inherent jurisdiction of the High Court
would
pose no great problems in practice.
We
recommend that the provisions of the legislation should in general apply to those aged 16 and over. (
Draft
Bill, clauses l(2) and 36(2).)"
"State parties shall respect the responsibilities, rights andduties
of parents or,
where
appropriate, the members of the extended family or community as is provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent
with
the evolving capacities of the child,
direction,
guidance in the exercise by the child of the rights recognised in the present Convention."
The Submissions of the Local Authority
"31. Obviously a local authoritydischarging
its
duty
under s20 has to keep its charges safe. It owes them a clear and important
duty
of care.
Were
it not to
do
so it
would
be liable to be sued for negligence. But as a matter of principle the
discharge
of that
duty
of care is not going to give rise to a
deprivation
of liberty if the child's parents can remove the child from the accommodation at any time under s20(
8).
If the child's parents
decide
not to remove him and the safeguarding of the child involves an actual confinement then it
would
be hard to say that the third element is satisfied, namely imputation to the State. Rather, the confinement
will
have been at the behest of the parents.
32. Both Mr Lock and Mr O'Brien argue that the question is not to bedecided
by reference to
what
they call 'legal niceties'. They say that the matter is to be examined
de
facto rather than
de
jure. I
disagree.
I consider that examination of the 'measure in question' involves asking first and foremost
what
is the legal basis for the confinement. If the legal basis is truly
voluntary
then it is
very
hard, indeed impossible, to see, that there has been an actual confinement at the behest of the State.
33. That said, Iwill
find later in this judgment that even on the footing argued by Mr Lock and Mr O'Brien, there has been no
deprivation
of liberty here. But my primary
decision
is that, given the terms of s20 (
8),
the provision of accommodation to a child,
whether
aged 17 or 7, under s20 (1), (3), (4) or (5)
will
not ever give rise to a
deprivation
of liberty
within
the terms of Art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. If the child is being accommodated under the auspices of a care order, interim or full, or if the child has been placed in secure accommodation under s25, then the position might be
different,
but that is not the case here."
"But my primarydecision
is that given the terms of s20 (
8)
the provision of accommodation of a child,
whether
17 or 7, under 20 (1), (3), (4) or (5)
will
not ever give rise to a
deprivation
of liberty
which
in the terms of Article 5 [of the Convention]."
a) a parent may in the exercise of their parental responsibility consent to the confinement of their child, such a consent fallingwithin
the 'zone of parental responsibility'; and
b) substituted consent may be given for the confinement of a patient by an individual authorised to act on their behalf.
"[P]arental rights to control a childdo
not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his
duties
towards the child and towards other children in the family"
"The principle of the law, as I shall endeavour to show, is that parental rights arederived
from parental
duty
and exist only so long as they are needed for the protection of the person and property of the child. The principle has been subjected to certain age limits set by statute for certain purposes: and in some cases the courts have
declared
an age of
discretion
at
which
a child acquires before the age of majority the right to make his (or her) own
decision.
But these limitations in no
way
undermine the principle of the law, and should not be allowed to obscure it. "
"[T]he legal right of a parent to the custody of a child ends at the 18th birthday; and even up till then, it is adwindling
right
which
the Courts
will
hesitate to enforce against the
wishes
of the child, the older he is. It starts
with
a right of control and ends
with
little more than advice."
"Adolescence is a period of progressive transition from childhood to adulthood and as experience of life is acquired and intelligence and understanding grow, sowill
the scope of the
decision-making
![]()
which
should be left to the minor, for it is only by making
decisions
and experiencing the consequences that
decision-making
skills
will
be acquired. As I put it in the course of the argument, and as I sincerely believe "good parenting involves giving minors as much rope as they can handle
without
an unacceptable risk that they
will
hang themselves."
"(6) No minor ofwhatever
age has power by refusing consent to treatment to override a consent to treatment by someone
who
has parental responsibility for the minor and a fortiori a consent by the court. Nevertheless such a refusal a
very
important consideration in making clinical judgments and for parents and the court in
deciding
![]()
whether
themselves to give consent. Its importance increases
with
the age and maturity of the minor".
"In the case of children living at home,what
might otherwise be a
deprivation
of liberty
would
normally not give rise to an infringement of article 5 because it
will
have been imposed not by the state, but by
virtue
of
what
the Strasbourg court has called "the rights of the holder of parental authority",
which
are extensive albeit that they "cannot be unlimited" (see Nielsen
v
![]()
Denmark
(1988) 11 EHRR 175, para 72, a
decision
![]()
which,
at least on its facts, is controversial, as evidenced by the strength of the
dissenting
opinions)."
"136. In addition, the Court notes that there is no evidence in the file that the applicant's motherwas
appointed to act as her legal representative. Moreover, given the continual conflicts between the applicant and her parents, and in the absence of any express procedural safeguards provided by Law no. 487/2002, in force at the relevant time,
with
regard to the appointment of personal representatives, or of any explicit evidence that the applicant had appointed her mother as her personal representative at the time of her hospitalisation, the Court is not convinced that the applicant's mother acted as the applicant's personal representative. Consequently, the Court cannot accept that the applicant
validly
consented either
directly
or indirectly to her hospitalisation or treatment. The prosecutor's order of 27 September 2005 is not sufficient to persuade the Court to the contrary."
"The Court observes in this connection that there are situationswhere
the
wishes
of a person
with
impaired mental faculties may
validly
be replaced by those of another person acting in the context of a protective measure…".
Discussions
and Analysis
"The Courtdid
not refer in its assessment in any of these later cases to Nielsen
v
![]()
Denmark
(1988) 11 EHRR 175,
which
concerned a 12 year old boy placed in a children's psychiatric unit by his mother (
who
alone had parental responsibility for him). The court held, by a majority of nine to seven, that he had not been
deprived
of his liberty. The restrictions to
which
he
was
subject
were
"no more than the normal requirements for the care of a child of 12 years of age receiving treatment in hospital. The conditions . . .
did
not, in principle,
differ
from those obtaining in many hospital
wards
![]()
where
children
with
physical
disorders
are treated" (para 72). Hence his hospitalisation "
did
not amount to a
deprivation
of liberty
within
the meaning of article 5, but
was
a responsible exercise by his mother of her custodial rights in the interest of the child" (para 73). The seven
dissenting
judges considered that placing a 12 year old boy
who
![]()
was
not mentally ill in a psychiatric
ward
for several months against his
will
![]()
was
indeed a
deprivation
of liberty. It
would
appear, therefore, that the case turns on the proper limits of parental authority in relation to a child. As already mentioned (para 4 above) there is no equivalent in English law to parental authority over a mentally incapacitated adult. In any event, the Strasbourg court
was
not
deterred
from finding a
deprivation
of liberty in the cases of Stanov,
DD,
Kedzior and Mihailovs by the fact that the placements
were
arranged by the person
who
had been appointed legal guardian of the applicant.
Freedom to leave in this sensewas
the crucial factor, not only in HL
v
United Kingdom,
where
the complainant
was
placed in a hospital, but also in Stanev
v
Bulgaria,
where
the complainant
was
placed in a care home, as
were
the complainants in
DD
![]()
v
Lithuania, Kedzior
v
Poland, and Mihailovs
v
Latvia. In each of these, the court's focus
when
considering the confinement question
was
on
whether
the complainant
was
"under the complete supervision and control of the staff and not free to leave". The fact that these
were
social care settings
with
relatively open conditions
was
no more
determinative
than had been the open hospital conditions in Ashingdane. In these more recent cases, HM
v
Switzerland, another care home placement, has consistently been
distinguished
because of the complainant's
willingness
to be in the home, rather than because of the conditions
within
the home. Although Nielsen has not been
departed
from, it is to be regarded as a case of substituted consent, and thus not fulfilling component (b)."
In respect of individuals who
lacked the capacity to consent to their placement she noted at paragraph 31 that:
"In all these cases, the applicant lacked the legal capacity to consent to the placement. In Shtukaturovv
Russia 54 EHRR 962,
decided
in 2008, the applicant had been placed in a psychiatric hospital at the request of his legal guardian,
which
in Russian law
was
regarded as a "
voluntary"
admission. Although he lacked the
de
jure legal capacity to
decide
for himself, this
did
not necessarily mean that he
was
![]()
de
facto unable to understand his situation (para 108). Indeed, he had evinced his objections. The subjective element of lack of consent
was
made out (para 109). The court took the same
view
in
DD
(para 150) and in Kedzior (para 58). Thus it appeared to give some
weight
to the objections of a person
who
lacked legal capacity
when
![]()
deciding
that the subjective element
was
made out
despite
the consent of the person's legal guardian. But in Mihailovs, the court seems to have gone further. In relation to one of the care home placements, the court held that there
was
a
deprivation
of liberty, because although the applicant lacked legal capacity he subjectively perceived his compulsory admission there as such a
deprivation
(para 134). In relation to a later placement, however, he
did
not raise any objections or attempt to leave and the court concluded that he had "tacitly agreed" to stay there and thus had not been
deprived
of his liberty (paras 139, 140). In contrast, of course, in HL
v
United Kingdom, the patient
was
![]()
deprived
of his liberty in the hospital
despite
his apparent compliance."
"In none of the more recent caseswas
the purpose of the confinement –
which
may
well
have been for the benefit of the person confined – considered relevant to
whether
or not there had been a
deprivation
of liberty. If the fact that the placement
was
![]()
designed
to serve the best interests of the person concerned meant that there could be no
deprivation
of liberty, then the
deprivation
of liberty safeguards contained in the Mental Capacity Act
would
scarcely, if ever, be necessary. As Munby J himself put it in JE
v
![]()
DE
[2007] 2 FLR 1150, para 46:
'I have greatdifficulty
in seeing how the question of
whether
a particular measure amounts to a
deprivation
of liberty can
depend
upon
whether
it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse . . . two quite separate and
distinct
questions: Has there been a
deprivation
of liberty? And, if so, can it be justified?'
Thisview
has been confirmed by the rejection in Austin
v
United Kingdom 55 EHRR 359, para 58,
with
specific reference to the care and treatment of mentally incapacitated people, of any suggestion by the House of Lords in Austin
v
Comr of Police of the Metropolis [2009] AC 564 that a beneficial purpose might be relevant (and see also MA
v
Cyprus (Application No 41872/10), 23 July 2013 and Creanga
v
Romania 56 EHRR 361)."
"Those rights include the right to physical liberty,which
is guaranteed by article 5 of the European Convention. This is not a right to
do
or to go
where
one pleases. It is a more focussed right, not to be
deprived
of that physical liberty. But, as it seems to me,
what
it means to be
deprived
of liberty must be the same for everyone,
whether
or not they have physical or mental
disabilities.
If it
would
be a
deprivation
of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out
with
close supervision, and unable to move away
without
permission even if such an opportunity became available, then it must also be a
deprivation
of the liberty of a
disabled
person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no
difference.
A gilded cage is still a cage."
"In the end, none of these suggesteddistinctions
is satisfactory. Nor, in my
view,
should they be. It is
very
easy to focus upon the positive features of these placements for all three of the appellants. The local authorities
who
are responsible for them have no
doubt
![]()
done
the best they could to make their lives as happy and fulfilled, as
well
as safe, as they possibly could be. But the purpose of article 5 is to ensure that people are not
deprived
of their liberty
without
proper safeguards, safeguards
which
![]()
will
secure that the legal justifications for the constraints
which
they are under are made out: in these cases, the law requires that they
do
indeed lack the capacity to
decide
for themselves
where
they should live and that the arrangements made for them are in their best interests. It is to set the cart before the horse to
decide
that because they
do
indeed lack capacity and the best possible arrangements have been made, they are not in need of those safeguards. If P, MIG and MEG
were
under the same constraints in the sort of institution in
which
Mr Stanev
was
confined,
we
![]()
would
have no
difficulty
in
deciding
that they had been
deprived
of their liberty. In the end, it is the constraints that matter.
Because of the extremevulnerability
of people like P, MIG and MEG, I believe that
we
should err on the side of caution in
deciding
![]()
what
constitutes a
deprivation
of liberty in their case. They need a periodic independent check on
whether
the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the
Deprivation
of Liberty safeguards (
which
could in
due
course be simplified and extended to placements outside hospitals and care homes). Nor should
we
regard the need for such checks as in any
way
stigmatising of them or of their carers. Rather, they are a recognition of their equal
dignity
and status as human beings like the rest of us."
"The observations of both Butler-Sloss P and Judge LJwere
made and must be read in the context of the provisions of a secure accommodation order
which
is recognised to be a
draconian
order. It must be granted sparingly and only
where,
of course, the statutory criteria of s25 (1) (a) and (b) 1989 are satisfied namely:
… unless it appears—
(a)that—
(i)he has a history of absconding and is likely to abscond from any otherdescription
of accommodation; and
(ii)if he absconds, he is likely to suffer significant harm; or
(b)that if he is kept in any otherdescription
of accommodation he is likely to injure himself or other persons.
In my judgment thedecision
in Re K is limited to the interpretation of s 25 CA 1989 and the compatibility of that statutory provision
with
article 5 of the Convention. The references to the ambit of parental responsibility
were
obiter. In any event I
do
not
derive
any assistance from the
decision
and observations made in Re K in
deciding
![]()
whether
![]()
D's
parents on the facts of this case
were
entitled to consent to his
detention
in Hospital B."
"Thedecisions
![]()
which
might be said to come
within
the zone of parental responsibility for a 15 year old
who
![]()
did
not suffer from the conditions
with
![]()
which
![]()
D
has been
diagnosed
![]()
will
be of a
wholly
![]()
different
order from those
decisions
![]()
which
have to be taken by parents
whose
15 year old son suffers
with
![]()
D's
![]()
disabilities.
Thus a
decision
to keep such a 15 year old boy under constant supervision and control
would
undoubtedly be considered an inappropriate exercise of parental responsibility and
would
probably amount to ill treatment. The
decision
to keep an autistic 15 year old boy
who
has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite
different
matter; to
do
otherwise
would
be neglectful. In such a case I consider the
decision
to keep this young person under constant supervision and control is the proper exercise of parental responsibility. "
"Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. Itdoes
not
depend
on one's
disposition
to explicit one's freedom. Nor is it
diminished
by one's lack of capacity. " (paragraph 76)
"The Court observes in this connection that there are situationswhere
the
wishes
of a person
with
impaired mental faculties may
validly
be replaced by those of another person acting in the context of a protective measure and that it is sometimes
difficult
to ascertain the true
wishes
or preferences of the person concerned."
"136. In addition, the Court notes that there is no evidence in the file that the applicant's motherwas
appointed to act as her legal representative. Moreover, given the continual conflicts between the applicant and her parents, and in the absence of any express procedural safeguards provided by Law no. 487/2002, in force at the relevant time,
with
regard to the appointment of personal representatives, or of any explicit evidence that the applicant had appointed her mother as her personal representative at the time of her hospitalisation, the Court is not convinced that the applicant's mother acted as the applicant's personal representative. Consequently, the Court cannot accept that the applicant
validly
consented either
directly
or indirectly to her hospitalisation or treatment. The prosecutor's order of 27 September 2005 is not sufficient to persuade the Court to the contrary."
a) the categories of personal representativeswho
may give a substituted consent;
b) the circumstances or conditions inwhich
a
valid
'substituted' consent may be given; or
c) the limits or extent of a substituted consent.
a)D
is incapcitious, by reason of his
disabilities,
and unable to provide a
valid
consent to his accommodation or confinement;
b) thus his parents must be able to step in and consent on his behalf.
I do
not agree.
"42.I therefore conclude that the first (objective) element of the test is not satisfied in this case. I further conclude that the second (subjective) element is not satisfied. RKwas
placed at KCH by her parents pursuant to a s20 agreement. They consented on her behalf in circumstances
where
![]()
with
a mental age of about two years she is obviously incapable of giving her own consent and
where
her parents have parental responsibility for her. By s3(1) of the Children Act 1989 parental responsibility is
defined
as "all the rights,
duties,
powers, responsibilities and authority
which
by law a parent of a child has in relation to the child and his property". In my opinion that extends to giving the necessary consent under the second element. In this regard I specifically follow and agree
with
the
decision
of the ECtHR in Nielsen
v
![]()
Denmark
and the minority judgment of Thorpe LJ in Re K. "
"…..my primarydecision
is that, given the terms of s20(
8),
the provision of accommodation to a child,
whether
aged 17 or 7, under s20(1), (3), (4) or (5)
will
not ever give rise to a
deprivation
of liberty
within
the terms of Art 5 of the European Convention on Human Rights."
"43.I further conclude that the third element is not satisfied. RK's placement at KCH is at the behest of her parents. It cannot be imputed to the state. "
"For present purposes I can summarise my conclusions as follows.Where
the State – here, a local authority – knows or ought to know that a
vulnerable
child or adult is subject to restrictions on their liberty by a private individual that arguably give rise to a
deprivation
of liberty, then its positive obligations under Art 5
will
be triggered.
(i) thesewill
include the
duty
to investigate, so as to
determine
![]()
whether
there is, in fact, a
deprivation
of liberty. In this context the local authority
will
need to consider all the factors relevant to the objective and subjective elements referred to in para [48] above;
(ii) if, having carried out its investigation, the local authority is satisfied that the objective element is not present, so there is nodeprivation
of liberty, the local authority
will
have
discharged
its immediate obligations. However, its positive obligations may in an appropriate case require the local authority to continue to monitor the situation in the event that circumstances should change;
(iii) if, however, the local authority concludes that the measures imposeddo
or may constitute a
deprivation
of liberty, then it
will
be under a positive obligation, both under Art 5 alone and taken together
with
Art 14, to take reasonable and proportionate measures to bring that state of affairs to an end.
What
is reasonable and proportionate in the circumstances
will,
of course,
depend
upon the context, but it might for example, Mr Bowen suggests, require the local authority to exercise its statutory powers and
duties
so as to provide support services for the carers that
will
enable inappropriate restrictions to be ended, or at least minimised;
(iv) if, however, there are no reasonable measures that the local authority can take to bring thedeprivation
of liberty to an end, or if the measures it proposes are objected to by the individual or his family, then it may be necessary for the local authority to seek the assistance of the court in
determining
![]()
whether
there is, in fact, a
deprivation
of liberty and, if there is, obtaining authorisation for its continuance."
"The principle of 'pragmatism' prayed in aid at paragraphs 108-110,derived
from the
decision
of House of Lords in Austin is one upon
which
![]()
very
little
weight
can properly be placed
where
the European Court of Human Rights in the subsequent application by Ms Austin made clear that pragmatism has no place in the
determination
of
whether
an individual is
deprived
of their liberty,
which
must be considered by reference to the standard principles
derived
from previous case-law: see paragraphs 58-9. It needs also to be recalled that Austin arose in a
very
![]()
different
context; the governing principles that apply in the instant case (that of
deprivation
of liberty for purposes of providing care to a boy
with
substantial mental health problems) must be those
derived
from Cheshire
West.
"
Conclusions
a) the judgment of the Court of Appeal in Re X (Court of Protection Practice) [2015] EWCA Civ 599; and
b) the fact that cases of confinement and/ordeprivation of liberty are highly fact specific.