Re A (Adult) and Re C (Child); A Local Authority v A [2010] EWHC 978 (Fam)

The circumstances of the domestic care of A and C by their families in the family home did not involve a deprivation of liberty engaging the protection of Article 5. [Summary required.]

Summary and commentary by Ben Troke, Browne Jacobson Solicitors

"Behind closed doors…"

A recent judgment addresses profound issues about the extent to which the state should reach into the family home, even to protect vulnerable adults and children who may be deprived of their liberty, and could also affect the way we use the Deprivation of Liberty Safeguards in the public arena.

The facts are fairly simple, though the judgment is not. There were two separate linked cases heard together, by Munby J (now Lord Justice Munby) in July 2009, though it took nearly a year to hand down the judgment (2010) EWHC 978.

A is an 8 year old girl, and C is a 20 year old young woman. They are not related. They are both at particular risk at night, due to a genetic condition (Smith Magenis syndrome) associated with learning disability, disturbed sleep patterns and serious self harming behaviour. They both live at the family home, and to keep A and C (and other members of their families) safe, each family has, as a last resort, taken to locking their daughter in her bedroom overnight. It was agreed by all involved that there was no other real alternative.

The Court had to consider whether this is a deprivation of liberty (DoL), to engage Article 5 of the European Convention, despite being only an act of private individuals rather than the state, and what role the state, through the local authority, has in such cases.

The definition of DoL and the role of the state

Munby J relies on the familiar three part definition of a DoL to engage Article 5: 1. A or C is being confined in a particular restrictive space for a not negligible period of time, sufficient to amount to an objective deprivation of liberty (see below) 2. A or C has not validly consented to the DoL (the subjective element - agreed that neither A nor C had capacity to validly consent to the bedroom door being locked overnight) 3. The state is responsible for the DoL

The local authority’s mere knowledge of what was going on in the family home was not enough to make the state responsible for this regime. Munby J spoke in powerfully critical terms of the local authority “mindset” he had seen in other cases (not, he took pains to emphasise, in this case) of seeking to exercise “control” over vulnerable adults and children, behaving “high-handedly” - sometimes without legal authority - notwithstanding their good intentions. The local authority’s role is to assess needs and to provide support, and to enlist the help of the Courts if more intervention is required.

Positive obligations under Article 5

However, Article 5 is not limited to protecting the individual from interference with liberty by the state. There is also a positive obligation on the state, through the local authority, to take positive steps to protect people from such interference by other private individuals.

This means that where the local authority thinks that a deprivation of liberty might be occurring in a private household, it has obligations to: • Investigate (and continue to monitor) whether there is a deprivation of liberty • Take steps to intervene to bring any deprivation to an end – perhaps by providing additional support and resources • If not resolved, to bring the case to Court

It was submitted that the local authority would be in breach of its positive obligations under Article 5 if it was aware of a possible deprivation of liberty in a family home and failed either to prevent it, or to seek the Court’s sanction to render it lawful. The judge seems to reject this submission, which some authors think contradicts the points made above. But it is also possible to read his comments as holding that the local authority here cannot be criticised for any failure because it did investigate and bring the matter before the Court. The least that can be said is that this part of the judgment is not straightforward.

Objective deprivation

Everyone who works with issues surrounding deprivation of liberty will be used to wrestling with the uncertainty as to whether a deprivation is occurring. There is no definition in statute, and the Code of Practice to the Deprivation of Liberty Safeguards says, helpfully, that “there is no simple definition of a deprivation of liberty”.

Through case law, we have come to understand that it is a question of degree, including issues of the nature, extent, duration, and intensity of the restrictions imposed, and that there is a massive grey area between running freely across a field at one end of the spectrum, and being imprisoned at the other end. Surprisingly, Munby J holds that, despite being locked in a room for 10-12 hours at the stretch, neither A nor C were deprived of their liberty. The context is everything. The judge quotes at length from a recent judgment of Parker J in re MIG and MEG ((2010) EWHC 785 fam - the transcript for which is not yet available). He also refers to the House of Lords Judgment in Austin [2009] UKHL 5, in which a person was kept “kettled” in a confined area with the May Day protestors in 2001 for up to seven hours, but the Lords held that she was not deprived of her liberty, at least partly because the police had acted reasonably and proportionately to manage public order, and deprivation of liberty was not their intention.

In Austin, Lord Hope made a powerful comment warning that “if confinement amounting to a deprivation of liberty… is established, good intentions cannot make up for any deficiencies in justification for the confinement…”. Munby J accepts “that the question of intention in the sense of mental attitude is irrelevant to the question of whether someone is deprived of their liberty”. Nonetheless, both Munby J and Parker J talk about A and C, MIG and MEG not being deprived of liberty in the family home due to the “purpose” or “context” of the confinement, because, for example, they didn’t object, and the restrictions were in their best interests - not to punish them, and were imposed in good faith.

For the purposes of the Deprivation of Liberty Safeguards, these factors may be relevant to whether a deprivation is justifiable and lawful, but none of them would show that a deprivation of liberty is not occurring in a care home or hospital. Essentially, the judges say that where a family caring regime is in good faith, it is not likely to be held to be a deprivation of liberty, and the common law doctrine of necessity will be enough to make this lawful.

The reliance on the common law doctrine of necessity, and the good faith of clinicians, was precisely the problem in the key case of Bournewood, where the European Court of Human Rights held that this allowed no procedural safeguards or due process by which a deprivation of liberty could be challenged.

For exactly this reason, the issues of good faith and good intentions are NOT to be taken into account when DOLS assessors consider whether there is an objective deprivation of liberty for the purposes of the Safeguards, which were introduced in response to Bournewood.

It might be appropriate to have different standards as to what is a deprivation of liberty according to whether it occurs in a family home, or the public arena - it seems likely that being locked in a room in a care home or hospital for 12 hours would be a deprivation of liberty for the purposes of the Safeguards – but such differing standards can cause confusion. As more case law arrives on deprivation of liberty, the task of the DOLS assessors, and the role of the local authorities, is not getting any easier.

And, since it is not unusual that it took nearly a year for the judgment in this case to be handed down, it is realistic to expect the Courts to cope with many more applications by local authorities to meet their positive obligations under Article 5 to investigate and intervene in what goes on in family homes, behind closed doors.

Ben Troke, Partner, Browne Jacobson, btroke@brownejacobson.com, 0115 976 6263 [1]

External link

Bailii

Mondaq: 'The Court Of Protection – Recent Cases And Comments On Procedure (Part 1)', Alexis Hearnden, Victoria Butler - Cole and Alex Ruck Keene, 1/7/10 - Summary at paras 27-29