ON APPEAL FROM THE COURT OF PROTECTION
MR JUSTICE BAKER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE MUNBY
| CHESHIRE WEST AND CHESTER COUNCIL
|- and -
|P (by his litigation friend THE OFFICIAL SOLICITOR)
Mr Richard Gordon QC and Mr Simon Burrows (instructed by O'Donnells on behalf of the Official Solicitor) for the Respondent
Hearing date : 22 September 2011
Crown Copyright ©
Lord Justice Munby :
The factual background
"Miss Whitaker describes Z House as "a large and spacious single-level bungalow" in which "the facilities generally are modern and cosy with a pleasant atmosphere." P has his own room that has been personalised to his needs and access to two nearby adapted bathrooms. Z House can accommodate up to four residents at any time. The normal staffing ratio during the day amounts to two staff for all four residents. In addition, however, P receives additional one-to-one close personal supervision during the daytime. P continues to attend the day centre five days a week, leaving Z House at 9.30 in the morning and returning at 5.00 in the evening. Until recently, P did not receive one-to-one supervision at the day centre but, following increased concerns about managing risk, that level of supervision has recently been introduced. At night, there is one "waking" member of staff available at Z House during the night, shared across two adjacent properties. The scheme operates a duty officer system whereby senior support workers are available to give advice to in-house support workers."
"As a result of his disability, he needs a high level of care. He can move for short distances without support, but in order to mobilise further he requires the use of a wheelchair. His difficulty in mobilising means that he is at risk of falling, particularly in situations where he may find it difficult to maintain his balance. He requires prompting and assistance with all activities of daily living, including mobility, nutrition, eating, personal hygiene and continence."
He noted (para ) that continence management has been a longstanding and significant problem for P:
"P has a long history of pulling at his continence pads and as a result they become shredded and torn. Of greater concern is the fact that P has developed a habit of putting the pieces of padding in his mouth and on occasions ingesting them. On occasions this has included the faecal contents of the pads. In addition to the obvious hygiene risk involved, there is, in P's case, the added danger of choking."
"This aspect of P's behaviour has caused particular difficulty to those entrusted with his care. A variety of techniques have been identified to tackle the problem, including monitoring his behaviour in order to ascertain the risk factors; structured toileting arrangements throughout the day to reduce the need to use pads; positive reinforcement strategies to promote improved behaviour; the use of specialist underwear; continence advice; and verbal redirection techniques. In addition, inevitably, care staff have sometimes had to resort to physical intervention. On occasions, P has "stored" pieces of incontinence pad and faeces in the roof of his mouth. In order to remove this material, two members of staff have had to use what is known as a "finger sweep" method, which I understand to involve inserting a finger into his mouth to check for and remove any such material. According to Miss Whitaker, "the two-to-one staffing is necessary for one person to open P's fist to hold and clean his hand to prevent him smearing it over himself or others, while the other person takes action to remove and refresh his pad and clothes." Miss Whitaker goes on to describe how P will attempt to fight against staff during these interventions. She also states: "despite implementation of the preventative strategies described, and use of close proximity one-to-one staffing, it is evident that P continues to pull at his continence pads and succeeds in tearing bits off, and accessing its contents, resulting in his putting it in his mouth and ingesting it".
Recently, as described by Miss Whitaker, the staff at Z House have adopted a new approach, involving P wearing an all in one body suit sewn up at the front, to prevent his hands touching his groin area, the only access being via a zip at the back. To date, this had proved a successful way of managing his behaviour."
In para , Baker J described other aspects of P's challenging behaviour.
"Using protective clothing, one staff member is to hold [his] hands, and ask him to open his mouth; use facial gestures as a prompt (staff to open their mouth). If [he] does not open his mouth; staff to touch [his] chin as a prompt, and repeat facial gesture again as above. If [he] is uncooperative, the second staff member is to open [his] mouth, place 2 fingers inside his mouth and use a sweeping motion across his palette to remove any contents. Staff should then support [him] to go to the bathroom and assist him to change his pad/clothing and freshen up."
This is plainly the most intrusive of all the techniques used with P.
"If [he] attempts to throw objects, staff to make his environment safe and remove objects by removing them from the area or safely removing the object from [his] hand. If [he] pushes staff away, move away from him initially, try alternatives in what you want him to do, ie give him time, try other people to support him. It is vital that staff maintain his safety. When [he] grabs out at other service users and staff, staff to ask [him] to "let go". This behaviour can be redirected easily. Staff to ask [him] what he wants; he may lead staff to something."
As counsel observed in argument, the technique is one of distraction, not restraint; certainly not the kind of restraint which, for example, is used on occasions in Young Offender Institutions. In relation to the fourth listed behaviour (banging his head) the behaviour intervention plan is:
"If [he] does bang his head, make his environment safe by moving objects. If [he] is leaning against a wall or window and is banging his head, one member of staff to place hand behind his back and gesture him to move away from the wall. If [he] is not happy to move, it is important that staff ensure his safety and two staff then to place hand on his elbow, and place a soft object behind his head until he will move away from the wall. Staff to remain positive with [him] and redirect him onto another more appropriate activity or establish what he is unhappy/anxious about."
In relation to the fifth listed behaviour (becoming unco-operative) the behaviour intervention plan is:
"If [he] becomes uncooperative and sits down on the floor, if he is safe from any changes, give him time, offer him a chair or his wheelchair. Place this next to him. Maintain close observations. Gesture [him] to stand and verbally encourage him, ie "Come on [name], stand up, do you want a drink?" [He] will eventually stand. Praise [him] for any positive responses, ignore and redirect any negative behaviour. It is vital that his safety is maintained. If [he] is unsafe and is refusing to stand, two staff will need to hold [his] hand on either side and support him to stand, or move to a chair/wheelchair."
Again, as will be noted, the emphasis is on preventing P harming himself.
"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:
(a) the lawful detention of a person after conviction by a competent court;(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority:(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;(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2 Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.
3 Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4 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.
5 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."
"1 Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2 Everyone shall be free to leave any country, including his own.
3 No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4 The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society."
I should point out that "ordre public", the expression used even in the English text of Article 2(3), is a term of art in French law having a considerably wider meaning than the English words "public order."
ii) Second, there are the domestic decisions in the control order and police crowd control 'kettling' cases: Secretary of State for the Home Department v JJ and others  UKHL 45,  1 AC 385, Secretary of State for the Home Department v E and another  EWCA Civ 459,  UKHL 47,  1 AC 499, Austin and another v Commissioner of Police of the Metropolis  EWCA Civ 989,  QB 660, on appeal  UKHL 5,  1 AC 564, and Secretary of State for the Home Department v AP  UKSC 24,  2 AC 1.
iii) Third, there are the Strasbourg mental health and community care cases: Ashingdane v United Kingdom (1985) 7 EHRR 528, Nielsen v Denmark (1989) 11 EHRR 175, HM v Switzerland (2002) 38 EHRR 314, HL v United Kingdom (2004) 40 EHRR 761, and Storck v Germany (2005) 43 EHRR 96.
iv) Finally, there are the domestic community care cases: DE v JE and Surrey County Council  EWHC 3459 (Fam),  2 FLR 1150, LLBC v TG, JG and KR  EWHC 2640,  1 FLR 414, G v E, A Local Authority and F  EWHC 621 (Fam),  2 FLR 294, appeal dismissed G v E (By his litigation friend the Official Solicitor)  EWCA Civ 822,  1 FLR 239, Re MIG and MEG  EWHC 785 (Fam),  COPLR Con Vol xxx, appeal dismissed P and Q v Surrey County Council  EWCA Civ 190,  2 FLR 583, and Re A and C (Equality and Human Rights Commission Intervening)  EWHC 978 (Fam),  2 FLR 1363. To this list I should add Re RK (Minor: Deprivation of Liberty)  EWHC 3355 (COP),  COPLR Con Vol xxx, C (By his litigation friend the Official Solicitor) v A Local Authority and LM, LPM, The PCT and an Organisation (Interested Parties)  EWHC 1539 (Admin), (2011) 14 CCCL 471, and London Borough of Hillingdon v Neary  EWHC 1377 (COP).
The judge's analysis
"In determining whether P is being deprived of his liberty, the court must follow the following legal principles.
(1) Section 64(5) of the 2005 Act provides that references to "deprivation of liberty" in the Act have the same meaning as in Article 5(1) of ECHR. Any analysis of whether P has been in fact deprived of his liberty must therefore have close regard to the jurisprudence of both the English courts and the European Court on the interpretation of that Article.
(2) That jurisprudence makes clear that, when determining whether there is a "deprivation of liberty" within the meaning of Article 5, three conditions must be satisfied, namely (a) an objective element of a person's confinement in a particular restricted space for a not negligible time; (b) a subjective element, namely that the person has not validly consented to the confinement in question, and (c) the deprivation of liberty must be one for which the State is responsible: see Storck v Germany and JE v DE and Surrey CC.
(3) When considering the objective element, the starting point is to examine the concrete situation of the individual concerned, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.
(4) The distinction between a deprivation of, and a restriction of, liberty is merely one of degree or intensity and not one of nature or substance: Guzzardi v Italy …, Storck v Germany.
(5) A key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the person's care and movements: HL v United Kingdom.
(6) So far as the subjective element is concerned, whilst there is no deprivation of liberty if a person gives a valid consent to their confinement, such consent can only be valid if the person has capacity to give it: Storck v Germany.
(7) So far as the third element is concerned, regardless of whether the confinement is effected by a private individual or institution, it is necessary to show that it is imputable to the State. This may happen by the direct involvement of public authorities or by order of the court".
So far as it goes, this summary of the jurisprudence, rightly in my judgment, is not challenged either by Ms Jenni Richards QC on behalf of the local authority or by Mr Richard Gordon QC on behalf of P. Mr Gordon helpfully points out, however, with reference to (2)(a) that the actual phrase used by the Strasbourg court in Storck (at para ) is confinement "to a certain limited place" rather than "in a particular restricted space."
"(1) P's move to Z House was planned carefully and conscientiously. No force, threats, sedation or subterfuge were involved.
(2) Z House is a large and spacious bungalow.
(3) P has his own room, which has been personalised and is equipped with his possessions such as his own music system. Occupational therapy ensures that P's accommodation is as homely as possible.
(4) P has shared use of communal space and free access to the entire building. P and the three other residents often sit and eat together. There is a garden which P can use whenever he likes.
(5) Z House is situated close to P's family so they can visit regularly. Contact with his family is encouraged.
(6) P is sociable and has the opportunity to mix with staff and other residents.
(7) The external doors of the property are unlocked during the day but locked at night for security reasons.
(8) P has never attempted to leave the property.
(9) P needs prompting and assistance with all activities of daily living, including nutrition, mobility, personal hygiene and continence. He requires 1:1 close personal supervision with self-care and sometimes 2:1 care to help with his continence problems.
(10) The 98 hours of extra care and support provided to him promote his freedom of movement.
(11) He attends a day centre Monday to Friday, leaving Z House at about 9.30 and returning about 5 pm.
(12) He takes part in other activities such as pub lunches, visits to the park and garden centres. He enjoys going out into the community. On these occasions, 1:1 support is provided because P has no concept of danger.
(13) His behaviour is not controlled by medication."
All this, said the local authority, amounts to the most normal life possible for P. Much the same argument was repeated before us.
"(1) Every aspect of P's life is monitored and supervised by those working for the local authority. There is complete and effective control over his care and movements.
(2) P is obliged to live at Z House. He cannot return to M's care, nor move anywhere else.
(3) He is unable to leave the premises unescorted.
(4) He has little privacy within Z House. Every aspect of his personal care is supported by staff.
(5) Z House records show that his behaviour is challenging and requires management. A wide range of measures is used for that purpose.
(6) Some of his behaviour is extremely challenging and needs urgent intervention, including on occasions physical restraint.
(7) In particular, his tendency to self-harm may require physical intervention. On occasions he can assault others unless restrained. In the community, he is often restrained in a wheelchair by a strap.
(8) Furthermore, his tendency to tear off his continence pads and ingest bits of padding and the contents requires a range of measures, including the wearing of a bodysuit that restricts his freedom, and on occasions, in his own interests, intrusive physical interventions, which can include having his arms held by one member of staff whilst a second inserts a gloved finger into his mouth to forcibly remove any retained material.
(9) The use of restraint is part of his care package. The local authority has been prompted in the course of this case to introduce a new policy which clarifies and articulates the circumstances in which restraint may be used."
"Clearly, the local authority and those who work at Z House have taken very great care to ensure that P's life is as normal as possible. There are a number of features that, by themselves, might suggest that this is not a case where he was being deprived of his liberty. The type of accommodation is characteristic of the type identified by Wilson LJ in P and Q v Surrey CC as being not designed for compulsory detention. P has regular contact with his family. He attends a day centre five days a week, and enjoys a good social life with other residents and staff and in the community. All these features help to give his life a strong degree of normality.
On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at times physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained.
In my judgment, the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty.
… I make it clear that, in reaching that finding, I am not being critical of the local authority or the staff at Z House. In my judgment, it is almost inevitable that, even after he has been supplied with a bodysuit, P will on occasions gain access to his pads and seek to ingest pieces of padding and faeces in a manner that will call for urgent and firm intervention. Those actions will be in his best interests and therefore justifiable, but they will, as a matter of concrete fact and legal principle, involve a deprivation of his liberty."
The ambit of Article 5
Deprivation of liberty: some basic principles
"… in proclaiming the "right to liberty", paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion … the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No 4 ... In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question ...
The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends."
"In order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question."
"there may be no deprivation of liberty if a single feature of an individual's situation is taken on its own but the combination of measures considered together may have that result."
So, he continued, "account must be taken of an individual's whole situation".
"Except in the paradigm case of close confinement in a prison cell, where there is no room for argument, the absolute nature of the right [under Article 5] requires a more exacting examination of the relevant criteria. There is a threshold that must be crossed before this can be held to amount to a breach of article 5(1). Whether it has been crossed must be measured by the degree or intensity of the restriction."
Deprivation of liberty: context and comparator
Deprivation of liberty: the domestic context
"The children in the present case are not in secure accommodation (whether in the sense in which that expression is used in s 25 of the Children Act 1989 or in any other sense). They are not being detained. They are simply living with foster parents in exactly the same type of domestic setting as any other children of their ages would be, whether living at home with their parents or staying with friends or relatives. Habeas corpus does not lie because a parent, or other person in loco parentis, makes it a rule that a child of tender years is not to leave the house unless accompanied by some suitable person or because an exasperated parent has sent a naughty child to his room and told him to stay there for 2 hours or because a rebellious teenager has been 'grounded' or subjected to a parentally enforced curfew, any more than habeas corpus lies if the headmaster of a boarding school forbids his charges to leave the school premises except at permitted times and for permitted purposes. And it makes no difference for this purpose that the domestic rule is actually enforced by the turning of a key in a lock."
I need hardly add that, whatever the position in relation to younger children, parents no more have a right to imprison or confine their adult children or subject them to their control, than a husband has a right to imprison, confine or control his wife.
"any reader of newspapers will have read of too many distressing cases where neglectful or uncaring parents have kept helpless children confined without any justification in cellars, cupboards or rooms in such conditions and for such protracted periods as would indubitably have amounted to both false imprisonment at common law and deprivation of liberty for the purposes of Article 5."
"the fact that a domestic setting can involve a deprivation of liberty does not, of course, mean that it very often will. And typically in the kind of context with which I am here concerned – care of children or vulnerable adults by their parents in the family home – there will not, in my judgment, be any deprivation of liberty, whether that phrase is used in the Article 5 sense or in the context of the common law tort and crime of false imprisonment."
Baker J had earlier made the same point in G v E (para ). Subsequently, in this court, Wilson LJ has said the same: P and Q v Surrey County Council  EWCA Civ 190,  2 FLR 583, para .
"It is notable that in HL v United Kingdom it was not suggested that HL would be deprived of his liberty in the domestic setting of the home of the foster carers, a placement to which he also lacked capacity to consent or dissent, and which he was not free to leave. The foster carers are described as "paid carers" and they must, I assume, have been employed by the Local Authority with social work responsibility for HL."
"I do not accept that mere placement in a residential or domestic setting can be construed as creating confinement of itself just because the person cannot legally decide whether to remain there or not. In my judgment, if a person is living what is for them a normal life in a family home, and would not be living any different life in any other setting including in their own family home, then it is very difficult to see how they can objectively be confined, simply because they lack the capacity to consent to that placement."
She repeated (paras -) that mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty, adding that
"if mere lack of capacity to consent were enough then all such persons placed by a Local Authority would be considered to be deprived of their liberty."
I agree with Parker J. Both her reasoning and her conclusion are unassailable.
Deprivation of liberty: purpose, motive and intention
"Is it relevant, when considering whether a case falls within the ambit of article 5(1), to have regard to the purpose for which a person's freedom of movement has been restricted? If so, in what kinds of cases can this be relevant? And, if the purpose of the restriction is relevant, what conditions must it satisfy to avoid being proscribed by the article?"
He also formulated the question (para ) as being
"the extent to which regard can be had to the aim or purpose of the measure in question when consideration is being given as to whether it is within the ambit of article 5(1) at all."
"measures of crowd control which involve a restriction on liberty, if they are not to be held to be arbitrary, must be carried out in good faith and should not exceed the length that is reasonably required for the purpose for which the measure was undertaken."
Likewise Lord Neuberger (para ) said that:
"the intention of the police is relevant, particularly in a non-paradigm case, such as this, and where the intention is manifest from the external circumstances. If it transpired, for instance that the police had maintained the cordon, beyond the time necessary for crowd control, in order to punish, or "to teach a lesson" to, the demonstrators within the cordon, then it seems to me that very different considerations would arise. In such circumstances, I would have thought that there would have been a powerful argument for saying that the maintenance of the cordon did amount to a detention within the meaning of article 5."
"The purpose of confinement which may arguably amount to deprivation of liberty is in general relevant, not to whether the threshold is crossed, but to whether that confinement can be justified under article 5(1)(a) to (f) … If confinement amounting to deprivation of liberty and personal security is established, good intentions cannot make up for any deficiencies in justification of the confinement under one of the exceptions listed in article 5(1)(a) to (f), which are to be strictly construed."
"Having said all that, however, I conclude that it is essential, in the present case, to pose the simple question: what were the police doing at Oxford Circus on 1 May 2001? What were they about? The answer is, as Lord Hope has explained in his full summary of the judge's unchallenged findings, that they were engaged in an unusually difficult exercise in crowd control, in order to avoid personal injuries and damage to property. The senior officers conducting the operations were determined to avoid a fatality such as occurred in Red Lion Square on 15 June 1974. The aim of the police was to disperse the crowd, and the fact that the achievement of that aim took much longer than they expected was due to circumstances beyond their control."
"I treat with extreme caution the suggestion that purpose is relevant in this type of case, save that it does seem to me to be realistic to put into the equation when trying to discern the factual matrix and whether these girls are objectively deprived of their liberty, that both girls were placed in their respective placements as children in need, because they need homes, rather than because they require restraint, or treatment. It is also relevant in my view to consider the reasons why they are under continuous supervision and control."
In the second (para ) she said this:
"I agree that it is impermissible for me to consider whether, if either is objectively detained or confined, this is with good or benign intentions or in their best interests. But notwithstanding that, as was observed by Lord Walker in Austin, "purpose" does not figure in the list of factors to be evaluated in determining the concrete situation of the person concerned, I am of the view that in this case it is permissible to look at the "reasons" why they are each living where they are. In the case of each there are overwhelming welfare grounds for them not to live in their family of origin. In relation to both girls, the primary intention is to provide them each with a home. Within those homes, they are not objectively deprived of their liberty. In neither of those homes are they there principally for the purpose of being "treated and managed". They are there to receive care."
"the question whether a measure amounts to a deprivation of liberty does not depend on whether it is intended to serve or actually serves the interests of the person concerned. This is illustrated by De Wilde, Ooms and Versyp v Belgium (1971) 1 EHRR 373 and the examples of minors and persons of unsound mind requiring educational supervision, whose detention is expressly justified under the provisions of Article 5(1)(d) and (e) on the premise that their case concerns "deprivation of liberty", even though such detention may be exclusively in the detainees' interests."
"I have great difficulty in seeing how the question of whether a particular measure amounts to a deprivation of liberty can depend on whether it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse what I should have thought are, both as a matter of logic and as a matter of legal principle, two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified?
The argument, if taken to its logical conclusion, would seem to lead to the absurd conclusion that a lunatic locked up indefinitely for his own good is not being deprived of his liberty. And if beneficent purpose cannot deprive what is manifestly a deprivation of liberty of its character as such, why should a beneficent purpose be of assistance in determining whether some more marginal state of affairs does or does not amount to a deprivation of liberty? No doubt it is some imperfection in my understanding or reasoning, but I confess to having great difficulty in identifying any satisfactory answer to the point made so convincingly by Judge Loucaides."
I remain of that view.
Deprivation of liberty: normality and relative normality
"A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman. Nevertheless, such penalty or measure does not escape the terms of Article 5 when it takes the form of restrictions that clearly deviate from the normal conditions of life within the armed forces of the Contracting States."
Certain forms of punishment were, on the facts of the case, held to involve deprivation of liberty within the meaning of Article 5. Others were not, because (para ) "They" — the applicants — "remain, more or less, within the ordinary framework of their army life."
"the task of a court is to assess the impact of the measures in question on a person in the situation of the person subject to them."
He added (para ), again referring to Engel:
"in assessing the impact of the measures in question on a person in the situation of the person subject to them, the court has assessed the effect of the measures on the life the person would have been living otherwise. Thus no deprivation of liberty was held to result from light arrest of serving soldiers ... since they continued to perform their duties and remained more or less within the ordinary framework of their army life."
It is clear, not least from what he went on to say, that when Lord Bingham referred to "the life the person would have been living otherwise" what he was comparing was not the life of a civilian but the life of a soldier "within the ordinary framework of … army life."
"It is necessary to focus on the actual lives these people were required by law to lead, how far they were confined to one place, how much they were cut off from society, how closely their lives were controlled."
"The effect of the 18-hour curfew, coupled with the effective exclusion of social visitors, meant that the controlled persons were in practice in solitary confinement for this lengthy period every day for an indefinite duration, with very little opportunity for contact with the outside world, with means insufficient to permit provision of significant facilities for self-entertainment and with knowledge that their flats were liable to be entered and searched at any time. The area open to them during their six non-curfew hours was unobjectionable in size, much larger than that open to Mr Guzzardi. But they were ... located in an unfamiliar area where they had no family, friends or contacts, and which was no doubt chosen for that reason. The requirement to obtain prior Home Office clearance of any social meeting outside the flat in practice isolated the controlled persons during the non-curfew hours also. Their lives were wholly regulated by the Home Office, as a prisoner's would be, although breaches were much more severely punishable. The judge's analogy with detention in an open prison was apt, save that the controlled persons did not enjoy the association with others and the access to entertainment facilities which a prisoner in an open prison would expect to enjoy."
Baroness Hale of Richmond's analysis (para ) was to similar effect.
"She says that the universally praised care provided to C by her devoted parents partly takes the form of restrictions. But, she says, such restrictions are needed because of specific features of C's genetic condition, to help her lead the best life she can. C's parents, she say, are looking after her, not punishing her; promoting and improving her autonomy and dignity, not restricting them; and in supporting her as they do they are giving to her, not taking away … The restrictions upon C, imposed in the context of her family life, are, says Ms Ball, as 'normal' as they could conceivably be for someone with C's condition. They are not arbitrary at all but, rather, tailored to her needs, proportionate and imposed in good faith. Moreover, she says, it has to be remembered that A and C are inherently restricted by the manifestations of their genetic condition. The 'restrictions' imposed upon them do not in fact, she says, restrict their liberty in any meaningful sense of the word. Rather, in the context of their restrictive condition, they maximise their opportunities and help them to live their lives to the full (emphasis added)"
I draw attention to the passages I have emphasised which, in my judgment, capture two very important truths: that some people are inherently restricted by their circumstances and that the "normality" with which we are here concerned is the normality of the life of someone with the relevant condition, not the normality of the life of the able-bodied man or woman on the Clapham omnibus.
"The "concrete situation" is that each lives exactly the kind of life that she would be capable of living in the home of her own family or a relative: their respective lives being dictated by their own cognitive limitations."
"by her reference to the provision for the girls of care in a home, the judge was by implication stressing the relative normality of the living arrangements under scrutiny. If the person is living with her parents or other members of his natural family in their home, she is living – in that respect – the most normal life possible … Not much less normal for this purpose is the life of a child in the home of foster parents or of an adult, such as Mr HL, in the home of carers".
He continued (para ):
"Of course the enquiry into normality transcends an enquiry into the residential arrangements. Of potentially great relevance in the case of children or young adults is whether, as would be normal almost irrespective of the degree of any disability, they go out to some sort of school or college; and, in the case of other adults, whether they go out to college or to a day centre or indeed in order to pursue some form of occupation. "It would seem then that if the individual can maintain a (relatively) normal daily balance between work and home then there may not be a deprivation of liberty": "Law of the ECHR", by Harris, O'Boyle and Warbrick, 2008, 2nd ed, 124. Furthermore … stress was laid in the cases both of HL and of Storck on the restrictions placed on outside social contact, ie, another major aspect of normal life".
"The test is an objective one but the assessment must take account of the particular capabilities of the person concerned. What may be a deprivation of liberty for one person may not be for another. The question is whether the arrangements made by the state for this individual amount to a deprivation of his or her liberty."
That echoes precisely the point made by the Strasbourg court in Engel.
"not to venture an opinion whether it may be relevant to focus on reductions in the level of autonomy in the arrangements under scrutiny from its level in the arrangements which were in place before the protective steps were imposed."
"the previous arrangements are not relevant to the question of whether the present arrangements engage article 5. Article 5 is not concerned with any changes in the person's situation; it is concerned with the objective question of whether there is, under the arrangements imposed by or imputable to the state, a deprivation of liberty. I envisage the possibility that the arrangements made by a Council might reduce the degree of liberty available to a person and yet still avoid being a deprivation of liberty; equally they might increase the degree of liberty and yet still represent a deprivation of it."
I respectfully agree on this point with Smith LJ.
Deprivation of liberty: the case-law
"even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children's home or nursing home, on the one hand, and a hospital designed for compulsory detentions like Bournewood; and it is in my view necessary to place each case along it."
i) The family home: Re A and C (Equality and Human Rights Commission Intervening)  EWHC 978 (Fam),  2 FLR 1363, concerned two young, unrelated, women, one still a child, the other an adult, both of whom suffered from Smith Magenis Syndrome. Each lived at home with her family. I held that neither was deprived of her liberty.
ii) Foster and analogous placements: Re MIG and MEG  EWHC 785 (Fam),  COPLR Con Vol xxx, appeal dismissed P and Q v Surrey County Council  EWCA Civ 190,  2 FLR 583, concerned two young sisters, MIG (P), who was 18 at the time of the hearing before Parker J, and MEG (Q), who was 17. Both suffered from learning disabilities. At the time of the hearing before Parker J, MIG was living in foster care. Parker J held that she was not deprived of her liberty. This court upheld her decision.
iii) Sheltered accommodation: I have already summarised the circumstances in Re MIG and MEG. At the time of the hearing before Parker J, MEG was living in a small specialist home for adolescents of which she was one of four residents. Parker J held that she was not deprived of her liberty. This court upheld her decision.
iv) A children's home: In Re RK (Minor: Deprivation of Liberty)  EWHC 3355 (COP),  COPLR Con Vol xxx, a 17½ year old girl suffering from autism, ADHD and severe learning difficulties was placed in a children's home which Mostyn J found (para ) did not involve a deprivation of liberty. An appeal is currently before this court, so I say no more about the case.
v) An 'ordinary' care home: In LLBC v TG, JG and KR  EWHC 2640,  1 FLR 414, TG, an elderly man of 78 suffering from dementia and cognitive impairment, had been placed in what McFarlane J (as he then was) described (para ) as "an ordinary care home where only ordinary restrictions of liberty applied." He held that there was no deprivation of liberty, although adding (para ) that the circumstances "may be near the borderline". It may be noted that TG was described by the judge as being "personally compliant" and "objectively content with his situation there."
vi) A residential special school: In C (by his litigation friend the Official Solicitor) v A Local Authority and LM, LPM, The PCT and an Organisation (Interested Parties)  EWHC 1539 (Admin), (2011) 14 CCCL 471, a child, now 18, with severe autism, severe learning difficulties and extreme challenging behaviours, had been placed in a residential special school under a regime which Ryder J held (para ) involved a deprivation of liberty.
vii) A support unit: In London Borough of Hillingdon v Neary  EWHC 1377 (COP), a man of 21 with childhood autism and a severe learning disability was placed in a support unit which Peter Jackson J found to involve a deprivation of liberty. "Key features", according to the judge, were (para ) "his objection to being at the support unit, the objection of his father, and the total effective control of [his] every waking moment in an environment that was not his home."
"the key factor in the present case [is] that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements … The … applicant would only be released from the hospital to the care of Mr and Mrs E as and when those professionals considered it appropriate … Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave."
"the crucial question in this case … is not so much whether (and, if so, to what extent) DE's freedom or liberty was or is curtailed within the institutional setting. The fundamental issue … is whether DE … has been and is deprived of his liberty to leave the Y home … in the sense of removing himself permanently in order to live where and with whom he chooses, specifically removing himself to live at home with [his wife]."
I continued (paras -):
"he is being "deprived of his liberty" by being prevented from returning to live where he wants and with those he chooses to live with, in other words at home and with [his wife] … Just as HL was, in the view of the Strasbourg court, deprived of his liberty … so in very much the same way DE … is being deprived of his liberty. The simple reality is that DE will be permitted to leave the institution in which [the local authority] has placed him and be released to the care of [his wife] only as and when … [the local authority] considers it appropriate."
Deprivation of liberty: conclusions
i) The starting point is the "concrete situation", taking account of a whole range of criteria such as the "type, duration, effects and manner of implementation" of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not nature or substance.
ii) Deprivation of liberty must be distinguished from restraint. Restraint by itself is not deprivation of liberty.
iii) Account must be taken of the individual's whole situation.
iv) The context is crucial.
v) Mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty
vi) In determining whether or not there is a deprivation of liberty, it is legitimate to have regard both to the objective "reason" why someone is placed and treated as they are and also to the objective "purpose" (or "aim") of the placement.
vii) Subjective motives or intentions, on the other hand, have only limited relevance. An improper motive or intention may have the effect that what would otherwise not be a deprivation of liberty is in fact, and for that very reason, a deprivation. But a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty. Good intentions are essentially neutral. At most they merely negative the existence of any improper purpose or of any malign, base or improper motive that might, if present, turn what would otherwise be innocuous into a deprivation of liberty. Thus the test is essentially an objective one.
viii) In determining whether or not there is a deprivation of liberty, it is always relevant to evaluate and assess the 'relative normality' (or otherwise) of the concrete situation.
ix) But the assessment must take account of the particular capabilities of the person concerned. What may be a deprivation of liberty for one person may not be for another.
x) In most contexts (as, for example, in the control order cases) the relevant comparator is the ordinary adult going about the kind of life which the able-bodied man or woman on the Clapham omnibus would normally expect to lead.
xi) But not in the kind of cases that come before the Family Division or the Court of Protection. A child is not an adult. Some adults are inherently restricted by their circumstances. The Court of Protection is dealing with adults with disabilities, often, as in the present case, adults with significant physical and learning disabilities, whose lives are dictated by their own cognitive and other limitations.
xii) In such cases the contrast is not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or woman on the Clapham omnibus. The contrast is with the kind of lives that people like X would normally expect to lead. The comparator is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations as X. Likewise, in the case of a child the comparator is a child of the same age and development as X.
"In my judgment, the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty."
Lloyd LJ :
Pill LJ :