Deprivation of Liberty in UK Law

The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, 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.

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.

All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them.

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 Article 5 will be triggered.

It is not disputed that in order to determine 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.

That jurisprudence makes clear that when determining whether there is a “deprivation of liberty” within the meaning of Article 5, three conditions must be satisfied, namely (1) an objective element of a person's confinement in a particular restricted space for a not negligible time; (2) a subjective element, namely that the person has not validly consented to the confinement in question, and (3) the deprivation of liberty must be one for which the State is responsible: see Storck v Germany (2005) 43 EHRR 96 and JE v DE and Surrey CC [2006] EWHC 3459 (Fam) [2007] 2 FLR 1150.

Permanent home confinement beyond 16 hours a day on a long-term basis necessarily to my mind involves the deprivation of physical liberty.