JE v DE (by his litigation friend, the Official Solicitor), Surrey County Council and EW [FD]
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY,Mr Justice Munby |
| Judgment Date | 29 December 2006 |
| Neutral Citation | [2006] EWHC 3459 (Fam) |
| Docket Number | Case No: FD06P01393 |
| Court | Family Division |
| Date | 29 December 2006 |
In the matter of DE (an adult patient)
And in the matter of the inherent jurisdiction of the High Court
And in the matter of a claim under section 7 of the Human Rights Act 1998
[2006] EWHC 3459 (Fam)
Mr Justice Munby
Case No: FD06P01393
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Paul Bowen (instructed by Miles & Partners) for the claimant
Miss Jenni Richards (instructed by Mackintosh Duncan) for the first defendant
Ms Fenella Morris (instructed by Legal and Insurance Services, Surrey County Council) for the second defendant
The third defendant appeared in person
Hearing dates: 1, 8 November 2006
This judgment was handed down in private but the judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the patient and members of his family must be strictly preserved.
These are proceedings under the inherent jurisdiction of the High Court which were commenced on 14 July 2006 by the claimant, JE. She is the wife of the first defendant, DE. They were married on 23 June 2005, though their relationship goes back a long way. The third defendant, EW, is DE's daughter by a previous marriage. The second defendant, Surrey County Council (“SCC”), is the local authority which, since September 2005, has assumed responsibility for DE's accommodation and care.
On 4 September 2005 SCC placed DE in the X residential care home. From there he was transferred by SCC on 14 November 2005 to the Y residential care home, where he remains. It is these actions of SCC which have given rise to the present proceedings.
The claim
The proceedings involve claims by JE, supported in some respects by the Official Solicitor, who acts as DE's litigation friend, that SCC has breached DE's rights under Article 5 and both DE's and JE's rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
For the purposes of these proceedings the relevant provisions of Article 5 are to be found in Articles 5(1)(e), 5(4) and 5(5). Article 5(1)(e) provides as follows:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.”
Article 5(4) provides that:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Article 5(5) provides that:
“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
Article 8 provides as follows:
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
JE's Part 8 claim form was accompanied by detailed particulars of her claim. I need not set out JE's factual allegations. It suffices for present purposes to set out the relief which she seeks:
i) a declaration that DE has capacity to decide where and with whom to live;
ii) alternatively, a declaration that DE lacks such capacity and that it is in his best interests to return to live with the claimant at the matrimonial home;
iii) a declaration that SCC has “detained” DE since 4 September 2005;
iv) a declaration that SCC has acted incompatibly with DE's rights under Article 5(1) of the Convention (and therefore unlawfully contrary to section 6 of the Human Rights Act 1998) in that:
a) DE's detention has not been “in accordance with a procedure prescribed by law”; and/or
b) DE is not “of unsound mind” and his detention is not necessary;
v) a declaration that SCC has acted incompatibly with DE's and/or JE's rights under Article 8(1) of the Convention (and therefore unlawfully contrary to section 6 of the Human Rights Act 1998) in that:
a) DE's detention has not been “in accordance with the law”; and/or
b) it is not necessary in a democratic society to detain DE; and/or
c) it is not necessary in a democratic society to prevent DE from returning home to live with JE;
vi) an injunction requiring SCC to take such steps as necessary to bring DE's “unlawful” detention to an end; and
vii) a declaration that SCC's failure to make an application to the High Court for a 'best interests' declaration to sanction its treatment of DE is incompatible with DE's rights under Article 5(4) and/or Article 8(1).
The Official Solicitor, acting as DE's litigation friend, has subsequently made a cross-application seeking:
i) a declaration that DE has been, and is being, unlawfully deprived of his liberty contrary to Article 5(1); and
ii) damages for breach of DE's Article 5(1) rights.
It will be appreciated by anyone reasonably familiar with this area of the law that the present case accordingly raises many of the issues canvassed in or arising in consequence of the 'Bournewood' litigation: see R v Bournewood Community and Mental Health NHS Trust ex p L [1999] 1 AC 458 and HL v United Kingdom (2004) 40 EHRR 761.
The proceedings
The matter came before His Honour Judge Bloom QC (sitting as a Deputy High Court Judge) on 7 September 2006. By paragraph 22 of the order he made on that occasion, Judge Bloom directed that there was to be a hearing on 1 November 2006 “to determine the issue of whether [DE] is being deprived of his liberty”. By paragraph 28 he directed that the final hearing take place on 29 January 2007. His order concluded with the following interim declaration:
“upon [JE] and [DE] reserving their position as to whether the interim declaration satisfies the requirements of Article 5 …
It is declared in the interim by consent that:
1 [DE] lacks capacity to make decisions about where he should live.
2 It is lawful being in [DE]'s best interests to reside in accommodation arranged by [SCC] at [the Y home].”
In accordance with further directions given by Judge Bloom in paragraph 22 of his order, that both hearings should be before the same judge, and, moreover, a judge who sits both in the Family Division and in the Administrative Court, the matter came on before me on 1 November 2006, just as it is hoped that the final hearing will also be before me.
The issue
Despite the terms of Judge Bloom's order, the parties sensibly agreed that, in the light of the Official Solicitor's cross-application, I should not confine my consideration of the facts to the narrow question of whether DE “is being” deprived of his liberty; I should consider not merely whether DE is being but also whether he has been deprived of his liberty. Accordingly I treat the question before me as being:
“Has DE at any (and if so at what) time or times since 4 September 2005 been and is DE now being deprived of his liberty by SCC?”
It will be appreciated that the only question before me at present is the narrow question of whether DE has been and is being “deprived of his liberty” as those words are used in Article 5(1). I am not concerned with the question of whether DE is “of unsound mind” within the meaning of Article 5(1)(e), nor with the question of whether, if he is, the deprivation of his liberty (if in fact he is deprived of his liberty) can be justified under Article 5(1) as being “in accordance with a procedure prescribed by law”, nor with the question of whether, even if it is, it is “necessary”, nor with any question arising under Article 5(4), nor with any question of compensation in accordance with Article 5(5). Those are all matters to be considered at the final hearing if, but only if, I find that there is or has been a “deprivation of liberty”. Absent such a finding, of course, all the remaining issues under Article 5 will fall away, leaving for decision (at least so far as the Convention is concerned) only the issues under Article 8.
I turn, therefore, to consider whether DE has been or is being “deprived of his liberty” as those words are used in Article 5(1). I shall consider the law first, before turning to consider the facts in more detail.
The law
It is important to note at the outset that “deprivation of liberty” as that concept is enshrined in Article 5(1) has an autonomous meaning. Although there is plainly an overlap between the Convention concept of someone being “deprived of his liberty” and the concept of “imprisonment” in the context of the common law tort of false imprisonment, and although, no doubt, in many instances both consequences will flow from the same state of affairs, it is possible for someone to be “deprived of his liberty” within the meaning of Article 5(1) even though we might not hold that he is being “imprisoned” for the purposes of the tort. As the Strasbourg court said in HL v United Kingdom (2004) 40 EHRR 761 1 at para [90]:
“Although this Court will have regard to the...
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