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

JurisdictionEngland & Wales
CourtCourt of Protection
Judgment Date04 May 2010
Date04 May 2010
Neutral Citation:

[2010] EWHC 978 (COP)

Court:

Court of Protection

Judge:

Munby LJ

In re A and In re C
Appearances:

R Sherman and P Rhone-Adrien (instructed by the Local Authority Solicitor) for the local authority; S Freeborn (instructed by Cafcass Legal) for A; J O'Brien (instructed by Gordon Brown Associates) for B (A's mother); A Ball QC and A Street (instructed by Irwin Mitchell) for C; P Bowen (instructed by Glynis Craig, Senior Lawyer EHRC) for the Equality and Human Rights Commission; D and E (C's father and mother) were neither present nor represented.

Issues:

Whether locked bedrooms in a domestic setting, designed to protect a child and an adult with learning disabilities and behavioural problems, amounted to a deprivation of liberty under Art 5 ECHR; whether there was any state responsibility.

Facts:

A was born in June 2001 (and so was a child at the relevant time), and C was born in July 1987 (and so an adult at the relevant time); they lived in the sam area with their parents. As a result of a genetic condition, both A and C had learning disabilities, were liable to engage in aggressive, self-harming and hyperactive behaviour, and had disturbed sleep patterns. A was locked in her room at night (with toys and a slide); she was not upset by this and expert evidence was that placing a carer with her would be overly-stimulating; she had engaged in harmful behaviours when not so confined. C was also locked in her room at night, along with books and games, and had engaged in harmful behaviour when not so confined; there was no sign that she was distressed and expert evidence was to the effect that it was preferable to having a night-time carer. The question arose as to whether the arrangements for A and C amounted to a deprivation of liberty for the purposes of Art 5 ECHR. The Equality and Human Rights Commission was allowed to intervene in light of evidence that significant numbers of disabled children were similarly treated in light of sleep problems, mostly in domestic settings and so outside the Deprivation of Liberty Safeguards of the Mental Capacity Act 2005: its position was that local authorities should investigate and seek court authority for anything amounting to a deprivation of liberty.

Judgment:

(Handed down in private but with leave to report on the basis that the anonymity of the children and their family is maintained.)

1. These are 2 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 2 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 Art 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 2 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 Art 5. 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 2 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...

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