Re A (A Child)(Deprivation of Liberty); C (Vulnerable Adult)(Deprivation of Liberty)

JurisdictionEngland & Wales
CourtFamily Division
Judgment Date04 May 2010
Neutral Citation[2010] EWHC 978 (Fam)
Docket NumberCase No: omitted

[2010] EWHC 978 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

IN THE COURT OF PROTECTION

Before: Mr Justice Munby

(Now Lord Justice Munby)

Case No: omitted

Case No: omitted

Between

In The Matter of A (dob 19.6.2001)

A Local Authority
Claimant
and
(1) A (by Her Guardian Ad Litem, Judith Bennett-Hernandez)
(2) B
Defendants
and
Equality and Human Rights Commission
Intervener
Between

In The Matter of C (dob 17.7.1987)

A Local Authority
Applicant
and
(1) C (by Her Litigation Friend The Official Solicitor)
(2) D
(3) E
Respondents
and
Equality and Human Rights Commission
Intervener

Mr Robert Sherman and Ms Paula Rhone-Adrien (instructed by the Local Authority Solicitor) for the Claimant/Applicant local authority

Ms Susan Freeborn (instructed by Cafcass Legal) for A

Mr Joseph O'Brien (instructed by Gordon Brown Associates) for B (A's mother)

Ms Alison Ball QC and Ms Amy Street (instructed by Irwin Mitchell) for C

Mr Paul Bowen (instructed by Glynis Craig, Senior Lawyer EHRC) for the Commission D and E (C's father and mother) were neither present nor represented

Hearing dates: 28–29, 31 July 2009

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

LORD JUSTICE MUNBY

This judgment was handed down in private but the judge hereby gives leave for it to be published

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 children and the adult members of their family must be strictly preserved.

Lord Justice Munby

Lord Justice Munby:

1

These are two linked cases which I heard whilst I was still a puisne judge of the Family Division and a nominated judge of the Court of Protection.

2

The first case relates to A, a child who was born on 19 June 2001. The other case relates to C, an adult who was born on 17 July 1987 and who lacks capacity. They are not related. Both suffer from Smith Magenis Syndrome. Both live in the area of the same local authority. Both live at home in the devoted and exemplary care of their parents: in A's case in the care of her mother, B (A's father does not have parental responsibility); in C's case in the care of her mother, D, and her father, E.

3

Although the legal context differs between the two cases, reflecting the different statutory (and, more generally, the different legal) regimes which apply to children and to incapacitated adults, both cases raise essentially the same important issue: Do the circumstances of their domestic care by their families in the family home involve a deprivation of liberty engaging the protection of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms? And what, if any, role does the local authority have in such cases?

4

Before going any further there are two things I wish to emphasise. As I have said, both A and C live at home in the devoted and exemplary care of their parents. No one has suggested, or could possibly suggest, any criticism of the loving, caring and devoted care they receive at home. No one has suggested, or could possibly suggest, that their domestic regime should be significantly altered, let alone that they should be removed from home. There is, in my judgment, nothing which even begins to suggest any proper basis for compulsory intervention in the lives of these families, whether by the local authority or by the court. The fact is, as Mr Joseph O'Brien put it on behalf of B, but the same in my judgment goes for both these families, that A and C benefit from an excellent level of care from their families in circumstances where the local authority does not suggest, and cannot sensibly suggest, that it, or any other public authority, could do any better. That is the first thing, and it requires to be borne firmly in mind throughout.

5

The other thing is this. As will shortly become apparent, I am concerned at this stage only with the question, as I have said, of whether the circumstances of their domestic care by their families in the family home involve a deprivation of liberty engaging the protection of Article I am not at this stage concerned with the question of whether, if they do, that state of affairs is justifiable in accordance with the Convention and in law. But everything I have read and heard would suggest that, realistically, there could be only one answer to that question: that this deprivation of liberty (if that is what it is – in fact, as will appear, I am quite satisfied that it is not) is quite plainly in the best interests of both A and C and justifiable in accordance with the Convention and in law.

6

In my judgment, as I shall explain in due course, these proceedings were properly brought. But they have now achieved their purpose. And I am quite satisfied that there is no need for the court to be any further involved in any aspect of the family life of either of these two families.

Smith Magenis Syndrome

7

Smith Magenis Syndrome is a rare genetic disorder that has physical, medical and neuropsychiatric manifestations. It is described by one of the witnesses, Dr Ahmad Khouja, a Consultant in Psychiatry of Learning Disability, who comments:

“The features of the disorder (which are displayed by C) include the following behaviour problems: self injurious behaviour, physical and verbal aggression, temper tantrums, destructive behaviour, hyperactivity, restlessness, excitability, distractibility and severe sleep disturbances, which include frequent and prolonged night waking and early morning waking.”

8

He elaborates this as follows:

“People with Smith Magenis Syndrome have marked difficulties controlling their emotions. Behaviours include frequent temper tantrums and outbursts, aggression, anxiety, impulsiveness and difficulty paying attention. These can be short lived but extremely intense at the time. During such aggression, people can get seriously assaulted and objects thrown and broken. People with Smith Magenis Syndrome appear to have very little control over their aggression at the time, but are remorseful after the event. These features have been present in C from an early age.

Self-injurious behaviours are universal and typically include hand-biting, self pinching/scratching and picking at sores, hitting the head or body, picking skin around the fingernails and tearing or pulling at the nails. The self injury is often a response to frustration or anger and can be extreme, possibly due to the decreased sensation in the extremities and relative insensibility to pain that is a characteristic of affected individuals. Boredom or habit may be other reasons for self—injurious behaviours. C displays self-harming behaviours in the form of nail pulling, wound picking and head-banging …

There are high rates of autism-like behaviours in Smith Magenis Syndrome such as stereotypic behaviours, a need for 'sameness' and difficulty adjusting to a new routine. People with Smith Magenis Syndrome are less impaired in their communicative abilities and sociability than one might expect from purely autistic children.

Severe sleep disturbance is a hallmark of the syndrome and has been reported to be near universal. The problems described include difficulties falling asleep, shortened sleep cycles, frequent and prolonged night awakenings, early morning waking, excessive daytime sleepiness and daytime napping. Evidence suggests that there is an underlying problem in the biological clock in the syndrome. C displays all the characteristic features of sleep disturbance seen in Smith Magenis Syndrome.

People with Smith Magenis Syndrome are frequently described as loving and caring, eager to please and with a good sense of humour. They like adult attention and enjoy interacting with adults, though the desire for individual attention from adults may be intense. Many also love music. They react well to consistency, structure and routine. These characteristics also describe C.”

9

There is an illuminating account in one of her statements by C's social worker, KM:

“This is a rare condition associated with developmental delay, learning disabilities, behavioural difficulties and disturbed sleep patterns and is caused by a small deletion (microdeletion) on Chromosome 17. The most distinctive features of Smith Magenis Syndrome are the behavioural problems. These include self-injurious behaviour such as hand biting, self picking or scratching, picking at sores, hitting the head or body, tearing or picking fingernails or the skin round the nails, physical and verbal aggression, frequent temper tantrums, destructive behaviour, hyperactivity, restlessness, excitability, distractibility, removal of clothes and severe sleep disturbances including difficulty falling asleep, shortened sleep cycles, frequent and prolonged night waking and early morning waking. Autistic type behaviours such as resistance to change, repetitive questioning and pre-occupation with particular topics are also common.”

10

These accounts suffice for present purposes to identify the behavioural problems which, in each case, underlie the regime which B, in the case of A, and D and E, in the case of C, have devised for their daughter's sleeping arrangements.

A's domestic circumstances

11

A lives at home with her mother, B, her mother's partner and a number of half-siblings. The written evidence (see below) gives me a very full, illuminating and insightful account of A's life both at home and at school. I have, of course, borne it all very much in mind, but there is no reason why these intensely private and intimate...

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