P (otherwise known as MIG) and another v Surrey County Council and Others
| Jurisdiction | England & Wales |
| Judgment Date | 15 April 2010 |
| Neutral Citation | [2010] EWHC 785 (Fam) |
| Date | 15 April 2010 |
| Court | Family Division |
[2010] EWHC 785 (Fam)
Court of Protection; CoP11627814
Parker J
In re MIG and MEG:
N O'Brien (instructed by Surrey County Council) for Surrey County Council; C Budden (instructed by Harney &Wells) for CA; A Giz (instructed by Anthony Morris) for LA; F Morris (instructed by Steel &Shamash) for MIG and MEG.
Whether there was a deprivation of liberty in the placement in a foster home or a small group home of young people with severe learning disabilities; the principles applicable to whether such settings amounted to a deprivation of liberty.
MIG was aged 18, MEG 17; both had a moderate to severe learning disability. MIG had the cognitive ability of a child of 2½ and could communicate her wants in a limited manner. MEG had the cognitive ability of a child of 4-5, and required a high degree of care and support. They had been taken into care when aged 17 and 16, with arrangements to allow contact with their mother and other family members.
MIG was placed in a foster home: she was not locked in or restrained, and did not seek to leave the home but would be prevented should she try in light of her lack of awareness of road safety; she was under constant supervision to meet her care needs; the only restrictions on her social contacts were by way of court declaration; she attended school. MEG was placed in a small group home following the breakdown of a foster placement; it had 4 residents; she was under constant supervision, to meet her care needs and also to deal with challenging behaviour towards others, which might require restraint; she received medication for anxiety.
The question arose as to whether either girl was deprived of her liberty. In relation to MIG, it was suggested that as she was unable to decide where she should live, was not free to leave, was subject to continuous supervision and control, and was deprived of social contacts, she was deprived of her liberty. In relation to MEG, it was submitted that these factors plus her placement in a residential home and receipt of medication amounted to a deprivation of liberty.
(Handed down in private, but with leave to report on the basis of the summary replacing paras 1-124 and anonymity for the parties and private individuals in the judgment.)
(Summary)
1. These Court of Protection proceedings are brought by Surrey County Council (SCC), the local authority with social work responsibility for 2 girls, MIG 18 and MEG 17, each suffering from moderate to severe learning disability of unknown origin, and represented by the Official Solicitor as their litigation friend.
2. By the Court of Protection applications SCC sought declarations in respect of both girls that they reside in such accommodation and receive such educational provision as directed by SCC, and that contact with their mother CA and extended family be regulated by SCC and be supervised by such person as SCC approves.
3. The Court found that they each lack capacity to make any decisions as to:
(i) Residence and care;
(ii) Contact;
(iii) Education;
(iv) Medical treatment;
(v) Legal issues.
4. MIG and MEG were each originally received into care pursuant to the Children Act 1989 in April 2007 and made the subject of interim care orders. On 8 August 2008 Roderic Wood J transferred the proceedings to the Court of Protection.
5. Assessments were carried out by Triangle, a specialist agency which provides assessment of and advice for disabled young adults; Dr Xenitidis, Consultant Psychiatrist specialising in learning disability; and Mr O'Meara, independent social worker.
6. MIG has been living with her former respite carer JW in JW's family home since her reception into care. MEG was originally placed on her reception into care with her former respite carer JB but the placement broke down as a result of her challenging behaviour and after 2 short-term placements she was placed in a small group home with 4 residents in the summer of 2008. The home is not permitted to accommodate residents over the age of 19. At the date of the hearing each was attending C College, in different years.
7. MIG has the cognitive ability of a child aged about 2½. MEG has the cognitive ability of a 4-5 year old, with possible autistic traits, and she exhibits challenging behaviours. She receives medication, Risperidone, to calm her anxiety. She has settled considerably in the setting of her residential home where with skilled attention, and 1 to 1 and sometimes 2 to 1 support, her behaviour has gradually improved.
8. The Court's finding was that their family background is such that each is at risk if returned to the care of their mother CA either now or in the future. Neither can care for herself and each requires a high degree of care and support.
9. The Court held that it was in their best interests to remain living in their present homes and attending C
College, and that the case should return to court in 2010 for further placement and educational decisions to be made.
10. The Court approved arrangements for them to have supervised contact with CA every 6 weeks and no contact with their stepfather LA. They have an older sister HG (21) who has 3 children and a younger sister SH (15). The Court approved arrangements for supported contact with these family members.
11. The Court was asked to consider whether either was deprived of her liberty.
----
Deprivation of Liberty
125. At directions hearings Miss Morris flagged up the Official Solicitor's intention to argue that both MIG and MEG are deprived of their liberty in their current placements. No specific application has been made for welfare based orders as to deprivation of liberty or for a declaration as to the lawfulness of deprivation of liberty under any jurisdiction.
126. SCC does not accept that either MIG or MEG is deprived of her liberty. However, in respect of MEG SCC accepted that the administration of medication and placement in a residential home were factors which potentially tipped the balance in favour of a finding that she is deprived of her liberty. For reasons which I will set out below I do not agree.
The European Convention
127. Article 5 of the European Convention on Human Rights and Fundamental Freedoms is entitled “Right to Liberty and Securityâ€. By para 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 for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.â€
128. 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.â€
129. Article 5(5) of the Convention 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.â€
130. Article 8 of the Convention provides that:
“(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 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.â€
131. These provisions have been the subject of consideration in both the domestic courts of this jurisdiction and the European Court of Human Rights in relation to the detention of persons with incapacity, minors, and persons considered to be in need of care and protection. They have also recently been considered in the courts of this jurisdiction in relation to control orders made in respect of those with suspected terrorist affiliations, and in respect of persons confined in a particular area by Police cordon during a political demonstration.
132. A long line of Strasbourg decisions, in a number of different and various factual situations, has developed the guiding principles. The decisions are not always easy to reconcile. However as Lord Bingham said in Secretary of State of the Home Department v JJ and othersELR[2008] 1 AC 385, (quoting R v Gillan):
“the prohibition in Art 5 on depriving a person of his liberty has an autonomous meaning: that is, it has a Council of Europe-wide meaning for the purpose of the convention … for guidance on the autonomous convention meaning to be given to the expression national courts must look to the jurisprudence of the Commission and the European Court in Strasbourg … but that jurisprudence must be used in the same way as other authorities are to be used, as laying down principles and not mandating solutions to particular cases. It is … perilous to transpose the outcome of one case to another where the facts are different. The case law shows that the prohibition in Art 5 has fallen to be considered in a very wide range of factual situations.â€
Deprivation of liberty: The Principles
133. Since the decision in GuzzardiHRC(1981) 3 EHRR 333, (a case involving a suspected member of the Mafia detained on a small island off the coast of Italy) the principle has been consistently expressed that that the aim of Art 5 is to ensure that no one should be dispossessed of liberty in an arbitrary fashion, as opposed to being subject to restraints on liberty. Article 5 is to be distinguished from Art 2 of the Fourth Protocol (not ratified...
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