P (otherwise known as MIG) and another v Surrey County Council and Others

JurisdictionEngland & Wales
JudgeLord Justice Wilson,Lady Justice Smith,Lord Justice Mummery
Judgment Date28 February 2011
Neutral Citation[2011] EWCA Civ 190
Docket NumberCase No: B4/2010/1059
CourtCourt of Appeal (Civil Division)
Date28 February 2011

[2011] EWCA Civ 190




Before: Lord Justice Mummery

Lady Justice Smith and

Lord Justice Wilson

Case No: B4/2010/1059


P (otherwise Known as Mig) and Q (otherwise Known as Meg), by the Official Solicitor, Their Litigation Friend
Surrey County Council
First Respondent
Second Respondent
Third Respondent
Equality and Human Rights Commission

Mr Richard Gordon QC and Miss Fenella Morris (instructed by Steel and Shamash, London SE1) appeared for the Appellants.

Ms Barbara Hewson (instructed by its Legal and Insurance Services) appeared for the First Respondent.

The Second and Third Respondents took no part.

Mr Paul Bowen (instructed by Ms Glynis Craig of the Intervener) made written submissions on behalf of the Intervener but, in accordance with the terms of its Intervention, did not appear at the hearing.

Hearing date: 21 October 2010

Lord Justice Wilson

Lord Justice Wilson:



The appellants (whom I prefer to describe as P and Q rather than as MIG and MEG) are sisters who have substantial and permanent learning disabilities. P was born on 27 April 1991 and so is now aged 19. Q was born on 11 April 1992 and so is now aged 18. Acting by the Official Solicitor, their litigation friend, they appeal against a declaration made by Mrs Justice Parker in the Court of Protection on 15 April 2010 that "the arrangements for [them] do not amount to a deprivation of their liberty". As before Parker J, they argue that the arrangements do amount to a deprivation of their liberty. As before Parker J, Surrey County Council ("Surrey"), which is responsible for their care and which is the substantive respondent to the appeal, argues that the arrangements do not amount to a deprivation of their liberty. The mother and stepfather of P and Q were made respondents to the appeal but take no part in it.


The appeal raises a difficult and important issue. This court has been fortunate that Mr Richard Gordon QC was briefed, with Miss Fenella Morris, to present the appeal on behalf of P and Q. Furthermore the court was happy to accede to an application by the Equality and Human Rights Commission ("the Commission") for permission to become an Intervener in the appeal for the purpose of adducing limited evidence and, in particular, of making submissions albeit only in writing. In the event the written submissions made on its behalf by Mr Paul Bowen of counsel have proved extremely valuable.


The issue whether the arrangements for P and Q amount to a deprivation of their liberty is an issue whether the arrangements engage Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Article 5 provides:

"1 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 of unsound mind …;

4. Everyone who is deprived of his liberty by … 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."


The practical effect of a conclusion that the arrangements for P and Q amount to a deprivation of their liberty is to be found in the valuable right provided by paragraph 4 of Article 5. For in that event their right would be to take court proceedings for a decision in relation to the lawfulness of their detention and so it would extend beyond their right, which pursuant to statutory guidance Surrey recognises in any event, to a review, at least annually, on Surrey's part into the continued aptness of the assessment under which their needs are met, including participation in the review by independent advocates on behalf of P and Q. The paragraph would impose a duty on the court itself periodically, again probably at least annually, to review the continued necessity for the arrangements which deprive them of their liberty, albeit perhaps only on paper unless requested otherwise: see Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam), [2010] 1 FLR 1373, at [26] – [28]. The court's review would probably again require independent representation of them.


I entirely ignore the fact that, were this appeal to be allowed, the vast, if unquantifiable, number of necessary reviews of such a character would surely be beyond the present capacity of the Official Solicitor's department and in particular of the Court of Protection. To have an eye to that factor would be to raise to it the wrong end of the telescope. The importance of the right to liberty is paramount ( McKay v. UK (2006) 44 EHRR 827, at [30]) and the state's positive obligation to provide the facilities necessary for its effective exercise is absolute.


We are told that, since the date of the judge's decision, the arrangements made by Surrey both for P and for Q have changed substantially: see [16] below. The enquiry whether they are deprived of their liberty requires a detailed examination of the arrangements for them: see [19] below. It would be neither practicable nor appropriate for this court to conduct such an examination in relation to the fresh arrangements for them. So we must focus on the arrangements as they stood before the judge. The recent changes will make our judgments less helpful to the parties than otherwise; but, on a wider basis, they may nevertheless have some value.



P has a mental age of two-and-a-half; her learning disability is either at the lower end of the moderate range or at the upper end of the severe range. She has problems with her sight, for which she wears glasses, and with her hearing, for which she wears a hearing aid. She communicates with difficulty, indeed hardly at all in sentences, and she has limited understanding. She lives largely in her own world and spends much of her time listening to music on her iPod.


Q has an overall mental age of four to five; her disability is at the high end of the moderate range and borders on the mild range. So her communication skills are better than those of P; indeed her language skills are at a level higher than that indicated by the overall assessment. Her emotional understanding is quite sophisticated. Like P, she has problems with her sight. But, unlike P, she is troubled in her mind, exhibits challenging behaviour and may have autistic traits. It is possible that, if she can learn to manage her emotions, Q can somewhat raise the general level of her functioning.


The impairment in the functioning of their minds renders both P and Q unable to make decisions for themselves in relation to anything other than the most trivial, day-to-day aspects of their lives. So they lack capacity in relation to all matters relevant to these proceedings for the purposes of s.2 of the Mental Capacity Act 2005 ("the Act of 2005"). Notwithstanding the potential improvement in the level of Q's functioning, the incapacity of both of them is almost certainly permanent.


Until April 2007 P and Q lived with the mother. Their father has played no part in their lives. Also living in their home were their half-sister born in 1988 and their sister born in 1993. In 1997 the man who was to become their stepfather also moved into the home.


The life of P and Q in the family home was dysfunctional and abusive. Each of them was subjected to excessive physical chastisement, neglect and deprivation. In 2009, following their removal from the home, the stepfather was convicted on seven counts of rape of their half-sister in the home during the period when they had been living there; albeit perhaps still subject to appeal, he is currently serving a sentence of 14 years' imprisonment. At the same time the mother was convicted on one count of indecent assault of the half-sister; she was sentenced to nine months' imprisonment and was released in May 2009. Although not themselves the victims of direct sexual abuse, P and Q were exposed to the sight of sexual activity in the home and lived in an openly sexualised environment.


On three occasions P and Q were placed on the Child Protection Register under the category of non-accidental injury; and on a number of occasions they were taken into respite care. When in April 2007 they were finally removed from the home, P moved into the foster home in which she remained living at the time of the enquiry conducted by the judge and Q moved into the home of her former respite carer. But in the end the latter considered that she could not manage Q's aggressive outbursts and so, by the time of the judge's enquiry, she had moved into a small residential home.


The judge made the following determinations:

(a) The mother's nominal request to be allowed to resume the care of P and Q should be refused.

(b) In principle the mother, whose relationship with P and Q was not obviously close, should, under stricter supervision than she had suggested, have contact with both of them together about once every six weeks, instead of weekly or fortnightly as she had sought.

(c) The stepfather's request for contact with them, whether direct or indirect, should be refused.

(d) The half-sister, who by the time of the enquiry had three small children and remained living in Surrey and whose relationship with P and Q was very strong, should have contact with both of them, under loose professional support, about once every six weeks.

(e) The sister, who...

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