ON APPEAL FROM THE COURT OF PROTECTION
MRS JUSTICE PARKER
LOWER COURT No: COP11627814
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE WILSON
| P (otherwise known as MIG) and Q (otherwise known as MEG), by the Official Solicitor, their litigation friend
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SURREY COUNTY COUNCIL
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EQUALITY AND HUMAN RIGHTS COMMISSION
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Ms Barbara Hewson (instructed by its Legal and Insurance Services) appeared for the First Respondent.
The Second and Third Respondents took no part.
Mr Paul Bowen (instructed by Ms Glynis Craig of the Intervener) made written submissions on behalf of the Intervener but, in accordance with the terms of its Intervention, did not appear at the hearing.
Hearing date: 21 October 2010
Crown Copyright ©
Lord Justice Wilson:
"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 of unsound mind …;
4 Everyone who is deprived of his liberty by … 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."
(a) The mother's nominal request to be allowed to resume the care of P and Q should be refused.
(b) In principle the mother, whose relationship with P and Q was not obviously close, should, under stricter supervision than she had suggested, have contact with both of them together about once every six weeks, instead of weekly or fortnightly as she had sought.
(c) The stepfather's request for contact with them, whether direct or indirect, should be refused.
(d) The half-sister, who by the time of the enquiry had three small children and remained living in Surrey and whose relationship with P and Q was very strong, should have contact with both of them, under loose professional support, about once every six weeks.
(e) The sister, who was about to move to Scotland with her foster parents and whose relationship with P and Q was also very strong, should be enabled to come down and participate in the contact between them and the half-sister.
(f) The relationship between P and Q themselves was mostly affectionate but there was sometimes rivalry. P had adopted the role of the good sister and Q that of the naughty sister. In any event the maintenance of their relationship was extremely important and their joint contact with the half-sister and the sister, as above, together with further contact between each other on other special occasions, would best serve that purpose.
C: THE ARRANGEMENTS FOR P AND Q
(a) she was living in an excellent foster home in Surrey;
(b) she was devoted to her foster mother;
(c) she had her own bedroom;
(d) she refused to keep her bedroom door open;
(e) the door was never locked;
(f) she had never attempted to leave the home on her own and had showed no wish to do so;
(g) were she to attempt to leave, the foster mother would restrain her;
(h) the foster mother provided intensive support to her in respect of most aspects of daily life;
(i) she attended a unit of further education each term-time day and was transported to and fro;
(j) the foster mother took her out on trips and holidays;
(k) she needed help in crossing the road because she was unaware of danger; and
(l) she was not in receipt of medication.
(a) she was living in a specialist home for adolescents in Surrey in which she was one of four residents;
(b) it was not a care home within the meaning of s.3 of the Care Standards Act 2000;
(c) she had her own bedroom;
(d) she occasionally suffered outbursts directed at other residents and she sometimes then required physical restraint;
(e) largely as a result of the use of behavioural management techniques, her behaviour was becoming significantly more stable;
(f) her care needs were met only as a result of continuous supervision and control;
(g) she was not locked into the home, which was not a secure unit;
(h) she showed no wish to go out on her own and so did not need to be prevented from doing so;
(i) whenever she left the home, she was attended;
(j) she was taken to and from the same unit of further education as was attended by P;
(k) she could communicate her wishes in a limited manner;
(l) she had a fuller social life than did P; and
(m) she was in receipt of medication, Risperidone, for the purpose of controlling her anxiety.
(a) P now attends a college in Somerset, at which she resides for 38 weeks each year, and she returns to live with her foster mother for the holiday periods; and
(b) Q, having become adult, is now resident in a non-secure Supported Living placement for about 12 persons in Surrey (again apparently not being a placement which qualifies as a care home), where she has her own bedroom and en suite facilities and where staff are present at all times, and from which for the time being she continues to attend the same unit of further education.
C: GUIDANCE FROM STRASBOURG
(a) "the objective element of a person's confinement to a certain limited place for a not negligible length of time": Storck v. Germany (2005) 43 EHRR 96, at ;
(b) the "additional subjective element [that] they have not validly consented to the confinement in question": the Storck case, also at ; and
(c) the confinement must be "imputable to the State": the Storck case, at .
"… 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 … 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 considers the key factor in the present case to be that the health care professionals treating and managing [Mr HL] exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained."
On the back of this quotation Mr Gordon reaches the summit of his case on this appeal; but of course the unit's complete and effective control over Mr HL was the key factor only in "the present case". So we need to be alert to material differences highlighted in the judgment. In this respect it is helpful to note first, at , that the argument on behalf of Mr HL had stressed that the conditions at the unit of the hospital, which was an authorised "detaining institution", were to be distinguished from those in the home of the carers; and second, at , that, in distinguishing the case of HM v. Switzerland (2002) 38 EHRR 314, the court pointed out that, in the nursing home into which the elderly Mrs HM was placed, the regime, under which, without being allowed to leave the home, she enjoyed freedom of movement and was encouraged to have contact with the outside world, was entirely different from that in the unit at Bournewood.
D: GENERAL DISCUSSION
"I am of the view that in this case it is permissible to look at he 'reasons' why they are each living where they are … 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 … In neither of those homes are they there principally for the purpose of being 'treated and managed'. They are there to receive care."
To the extent that, as Mr Gordon complains, the judge was there attaching significance to the fact that the purpose of the arrangements for the girls was to further their best interests, I believe that she was wrong to do so. But, although therefore to a limited extent I dissociate myself from the terminology of that passage, the judge nevertheless was there alighting on a relevant feature.
E: APPLICATION TO THE CASES OF P AND Q.
(a) they were not free to leave their respective accommodation;
(b) they did not object to the arrangements for them and did not seek to leave – and therefore did not have to be restrained from leaving – their accommodation;
(c) their daily care needs were met by virtue of supervision and control;
(d) they had their own bedrooms;
(e) they were not under close confinement within their accommodation;
(f) they were taken out each day to the unit of further education;
(g) they were taken on other outings;
(h) they had good outside contact with family members under elaborate arrangements made by Surrey; although their contact with the mother was not as frequent as she had wished (being, with respect, one of Mr Gordon's thinner points), they had reasonable contact with her and, apparently more importantly for them, reasonable contact with each other, with the half-sister and with the sister; and
(i) the elements of confinement, supervision and control in their lives were likely to be permanent.
(a) she was living in a family home;
(b) her social life was very limited; and
(c) she was not in receipt of medication.
(a) she was not living in a family home;
(b) she was living in a home in which she was one of only four residents;
(c) her outbursts, though becoming less frequent, sometimes precipitated the need for physical restraint;
(d) she was in receipt of medication, albeit not forcibly administered, for control of her anxiety; but, as the judge expressly found, she would have required such medication whatever her circumstances and neither its purpose nor its effect was to restrain her from trying to leave the home or from pursuing any other activity; and
(e) her social life was fuller than that of P.
Lady Justice Smith:
Lord Justice Mummery: