JE v DE & Ors

These are proceedings under the inherent jurisdiction of the High Court which were commenced on 14 July 2006 by the claimant, JE. She is the wife of the first defendant, DE. They were married on 23 June 2005, though their relationship goes back a long way. The third defendant, EW, is DE’s daughter by a previous marriage. The second defendant, Surrey County Council (“SCC”), is the local authority which, since September 2005, has assumed responsibility for DE’s accommodation and care.

On 4 September 2005 SCC placed DE in the X residential care home. From there he was transferred by SCC on 14 November 2005 to the Y residential care home, where he remains. It is these actions of SCC which have given rise to the present proceedings.

The proceedings involve claims by JE, supported in some respects by the Official Solicitor, who acts as DE’s litigation friend, that SCC has breached DE’s rights under Article 5 and both DE’s and JE’s rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

For the purposes of these proceedings the relevant provisions of Article 5 are to be found in Articles 5(1)(e), 5(4) and 5(5). Article 5(1)(e) provides as follows:

“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 for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.”

Article 5(4) provides that:

“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.”

Article 5(5) provides that:

“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.”

Article 8 provides as follows:

“(1)

Everyone has the right to respect for his private and family life, his home and his correspondence.

(2)

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

JE’s Part 8 claim form was accompanied by detailed particulars of her claim. I need not set out JE’s factual allegations. It suffices for present purposes to set out the relief which she seeks:

The Official Solicitor, acting as DE’s litigation friend, has subsequently made a cross-application seeking:

It will be appreciated by anyone reasonably familiar with this area of the law that the present case accordingly raises many of the issues canvassed in or arising in consequence of the ‘Bournewood’ litigation: see R v Bournewood Community and Mental Health NHS Trust ex p L [1999] 1 AC 458 and HL v United Kingdom (2004) 40 EHRR 761.

The matter came before His Honour Judge Bloom QC (sitting as a Deputy High Court Judge) on 7 September 2006. By paragraph 22 of the order he made on that occasion, Judge Bloom directed that there was to be a hearing on 1 November 2006 “to determine the issue of whether [DE] is being deprived of his liberty”. By paragraph 28 he directed that the final hearing take place on 29 January 2007. His order concluded with the following interim declaration:

“upon [JE] and [DE] reserving their position as to whether the interim declaration satisfies the requirements of Article 5 …

It is declared in the interim by consent that:

1

[DE] lacks capacity to make decisions about where he should live.

2

It is lawful being in [DE]’s best interests to reside in accommodation arranged by [SCC] at [the Y home].”

In accordance with further directions given by Judge Bloom in paragraph 22 of his order, that both hearings should be before the same judge, and, moreover, a judge who sits both in the Family Division and in the Administrative Court, the matter came on before me on 1 November 2006, just as it is hoped that the final hearing will also be before me.

Despite the terms of Judge Bloom’s order, the parties sensibly agreed that, in the light of the Official Solicitor’s cross-application, I should not confine my consideration of the facts to the narrow question of whether DE “is being” deprived of his liberty; I should consider not merely whether DE is being but also whether he has been deprived of his liberty. Accordingly I treat the question before me as being:

“Has DE at any (and if so at what) time or times since 4 September 2005 been and is DE now being deprived of his liberty by SCC?”

It will be appreciated that the only question before me at present is the narrow question of whether DE has been and is being “deprived of his liberty” as those words are used in Article 5(1). I am not concerned with the question of whether DE is “of unsound mind” within the meaning of Article 5(1)(e), nor with the question of whether, if he is, the deprivation of his liberty (if in fact he is deprived of his liberty) can be justified under Article 5(1) as being “in accordance with a procedure prescribed by law”, nor with the question of whether, even if it is, it is “necessary”, nor with any question arising under Article 5(4), nor with any question of compensation in accordance with Article 5(5). Those are all matters to be considered at the final hearing if, but only if, I find that there is or has been a “deprivation of liberty”. Absent such a finding, of course, all the remaining issues under Article 5 will fall away, leaving for decision (at least so far as the Convention is concerned) only the issues under Article 8.

I turn, therefore, to consider whether DE has been or is being “deprived of his liberty” as those words are used in Article 5(1). I shall consider the law first, before turning to consider the facts in more detail.

It is important to note at the outset that “deprivation of liberty” as that concept is enshrined in Article 5(1) has an autonomous meaning. Although there is plainly an overlap between the Convention concept of someone being “deprived of his liberty” and the concept of “imprisonment” in the context of the common law tort of false imprisonment, and although, no doubt, in many instances both consequences will flow from the same state of affairs, it is possible for someone to be “deprived of his liberty” within the meaning of Article 5(1) even though we might not hold that he is being “imprisoned” for the purposes of the tort. As the Strasbourg court said in HL v United Kingdom (2004) 40 EHRR 761 (Footnote: ¹) at para [90]:

“Although this Court will have regard to the domestic courts’ related findings of fact, it does not consider itself constrained by their legal conclusions as to whether the applicant was detained or not, not least because the House of Lords considered the question from the point of view of the tort of false imprisonment rather than the Convention concept of “deprivation of liberty” in art 5(1), the criteria for assessing those domestic and Convention issues being different.”

The classic statement of principle as to what is meant by someone being “deprived of his liberty” within the meaning of Article 5(1) is to be found in Guzzardi v Italy (1980) 3 EHRR 333. In that case a suspected mafioso had been made the subject of a compulsory residence order requiring him to live on a small island, Asinara, and it was against this background that the Court had to consider the issue of principle. At para [92] (citation omitted) the Court said:

“The Court recalls that 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. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 which has not been ratified by Italy. 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 Court added (at para [93]):

“The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance.”

Considering the applicant’s circumstances the Court continued (at para [95]):

“The Government’s reasoning … is not without weight. It demonstrates very clearly the extent of the difference between the applicant’s treatment on Asinara and classic detention in prison or strict arrest imposed on a serviceman. Deprivation of liberty may, however, take numerous other forms.”

In Ashingdane v United Kingdom (1985) 7 EHRR 528 at para [41] the Court applied the same test in the context of a patient in a mental hospital. It summarised the principle as follows:

“According to the established case-law of the Court, Article 5(1) is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No 4. In order to determine whether circumstances involve deprivation of liberty, the starting point must be 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. The distinction between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance.”

Virtually the same formulation was adopted by the Court in Nielsen v Denmark (1988) 11 EHRR 175 at para [67], in HM v Switzerland (2002) 38 EHRR 314 at para [42], in HL v United Kingdom (2004) 40 EHRR 761 at para [89] and in Storck v Germany (2005) 43 EHRR 96 at para [71].

I have been taken to a number of domestic cases arising in various contexts. Thus I have been taken to cases involving the residential and other conditions imposed on released prisoners (Davis v Secretary of State for the Home Department [2004] EWHC 3113 (Admin)) or mental patients (Secretary of State for the Home Department v Mental Health Review Tribunal (PH, interested party) [2002] EWCA Civ 1868, R (G) v Mental Health Review Tribunal [2004] EWHC 2193 (Admin), R (Secretary of State for the Home Department) v Mental Health Review Tribunal [2004] EWHC 2194 (Admin) and R (SR) v Mental Health Review Tribunal [2005] EWHC 2923 (Admin)), ‘stop and search’ (R (Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12) and control orders (Secretary of State for the Home Department v JJ and others [2006] EWCA Civ 1141).

However, as Lord Bingham of Cornhill observed in Gillan at para [23]:

“The Strasbourg jurisprudence is closely focused on the facts of particular cases, and this makes it perilous to transpose the outcome of one case to another where the facts are different.”

I propose therefore to concentrate primarily, as indeed most of the submissions before me did, on the few cases most directly in point. They are, in chronological sequence, Nielsen v Denmark (1988) 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.

Nielsen v Denmark (1988) 11 EHRR 175 is important, not so much because it is in pari materia – it is not, because it involved a child – but because it is much referred to in the subsequent cases.

The facts in Nielsen v Denmark were that the mother of a 12-year old boy arranged for his admission to the State Hospital’s child psychiatric ward. It appears (see at paras [19]-[20]) that the mother made the request for her son’s admission, that she was supported by the family doctor, who recommended admission, that the responsible chief physician of the ward (Professor Tolstrup) accepted the child’s admission, and that the relevant public authority recorded its approval. The Court described conditions on the ward as follows (at para [70]):

“The applicant was in need of medical treatment for his nervous condition and the treatment administered to him was curative, aiming at securing his recovery from his neurosis. This treatment did not involve medication, but consisted of regular talks and environmental therapy.

The restrictions on the applicant’s freedom of movement and contacts with the outside world were not much different from restrictions which might be imposed on a child in an ordinary hospital: it is true that the door of the Ward, like all children’s wards in the hospital, was locked, but this was to prevent the children exposing themselves to danger or running around and disturbing other patients; the applicant was allowed to leave the Ward, with permission, to go for instance to the library and he went with other children, accompanied by a member of the staff, to visit playgrounds and museums and for other recreational and educational purposes; he was also able to visit his mother and father regularly and his old school friends and, towards the end of his stay in hospital, he started going to school again; in general, conditions in the Ward were said to be ‘as similar as possible to a real home’.

The duration of the applicant’s treatment was five and a half months. This may appear to be a rather long time for a boy of 12 years of age, but it did not exceed the average period of therapy at the Ward and, in addition, the restrictions imposed were relaxed as treatment progressed.”

The Government of Denmark sought to resist the claim – in the event successfully, the Court finding in its favour by nine votes to seven – on two grounds (see at paras [60], [66]):

The Court noted (at para [59]) that at the relevant time the applicant’s mother was the sole holder of parental rights over him according to Danish law and commented (at para [61]) that:

“The care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose, or authorize others to impose, various restrictions on the child’s liberty. Thus the children in a school or other educational or recreational institution must abide by certain rules which limit their freedom of movement and their liberty in other respects. Likewise a child may have to be hospitalised for medical treatment.”

The Court went on to hold (at para [63]) that “the decision on the question of hospitalisation was in fact taken by the mother in her capacity as holder of parental rights” with the consequence (see at para [64]) that “Article 5 therefore is not applicable in so far as it is concerned with deprivation of liberty by the authorities of the State.”

The Court then turned to consider (see at para [64]) “whether the Article is applicable in the circumstances of the present case in regard to such restrictions on the applicant’s liberty as resulted from the exercise of the mother’s parental rights.” In considering that question, the Court directed itself (at para [67]) by reference to the test laid down in Guzzardi v Italy (1980) 3 EHRR 333.

The Court held (at para [69]) that “the mother, when taking her decision on the basis of medical advice from her family doctor and from Professor Tolstrup, had as her objective the protection of the applicant’s health”, commenting that this was “certainly a proper purpose for the exercise of parental rights.” It went on to hold (at para [70]) that there was “no reason to find that the treatment given at the Hospital and the conditions under which it was administered were inappropriate in the circumstances.”

The Court’s reasons for holding that there was no deprivation of liberty are set out at para [72]:

“The restrictions imposed on the applicant were not of a nature or degree similar to the cases of deprivation of liberty specified in paragraph (1) of Article 5. In particular, he was not detained as a person of unsound mind so as to bring the case within paragraph (1)(e). Not only was the child not mentally ill within the meaning of the 1938 Act, but the Psychiatric Ward at the Hospital was in fact not used for the treatment of patients under the 1938 Act or of patients otherwise suffering from mental illnesses of a psychotic nature. Indeed, the restrictions to which the applicant was subject were no more than the normal requirements for the care of a child of 12 years of age receiving treatment in hospital. The conditions in which the applicant stayed thus did not, in principle, differ from those obtaining in many hospital wards where children with physical disorders are treated.

Regarding the weight which should be given to the applicant’s views as to his hospitalisation, the Court considers that he was still of an age at which it would be normal for a decision to be made by the parent even against the wishes of the child. There is no evidence of bad faith on the part of the mother. Hospitalisation was decided upon by her in accordance with expert medical advice. It must be possible for a child like the applicant to be admitted to hospital at the request of the holder of parental rights, a case which clearly is not covered by paragraph (1) of Article 5.”

It continued at para [73]:

“The Court concludes that the hospitalisation of the applicant did not amount to a deprivation of liberty within the meaning of Article 5, but was a responsible exercise by his mother of her custodial rights in the interest of the child. Accordingly, Article 5 is not applicable in the case.”

There were strong dissenting opinions from no fewer than seven judges. All seven dissenting judges subscribed to a joint dissenting opinion saying:

“we attach great importance to the fact that the committal lasted over a period of several months and involved the placing in a psychiatric ward of a twelve-year-old boy who was not mentally ill. In our view, that constituted a deprivation of liberty within the meaning of Article 5.”

Two of the dissenting judges subscribed to a further joint dissenting opinion in which they said:

“The applicant’s committal could not be based on any of the grounds which could have justified it under [paragraph 5(1)].

It did not constitute the normal exercise of parental authority or the normal practice of psychiatry. In fact it represented an abuse of both.”

I need say nothing about that part of the decision which relates to the first ground. It is the second ground which is relevant for present purposes. In this connection it is revealing that both the argument of the Government of Denmark (at para [71]) and the judgment of the Court (at paras [64], [69], [72] and [73]) laid emphasis upon the fact that what was being done to the applicant was being done at the behest of his mother and in what the Government asserted and the Court accepted was the responsible exercise of her parental rights. Indeed, what seems to have divided the majority and the minority (see at paragraph [29] above) was the question of whether the applicant’s mother was acting properly in the normal exercise of her parental authority or in abuse of her authority. In these circumstances it seems to me that, properly understood, Nielsen v Denmark (1988) 11 EHRR 175 is a case about the proper ambit of parental authority, albeit that it concerned a child placed in a psychiatric institution. It is not, as it seems to me, a case which is of any real assistance in assessing the very different question of whether an adult placed in a psychiatric or other institution is or is not deprived of his liberty. And this is how Nielsen v Denmark (1988) 11 EHRR 175 has indeed been interpreted by the Strasbourg court in its subsequent decisions.

In HM v Switzerland (2002) 38 EHRR 314, a case concerning an adult, the Court, as we shall see, placed reliance upon what it referred to (at para [48]) as “the comparable circumstances in Nielsen.” This approach was criticised by two of the judges (Judges Gaukur Jörundsson and Loucaides) who, dissenting on this point, rejected the view that the circumstances in Nielsen v Denmark – a case which as they pointed out involved a child placed in hospital by his mother – were comparable to the circumstances of an adult placed under curatorship.

The dissenting opinion of Judge Loucaides put the point with great clarity (citations omitted):

“the majority’s reliance on the “comparable circumstances in Nielsen” does not, I think, provide a solid ground for their conclusion that Article 5(1) is not applicable in the present case. Like Judge Gaukur Jörundsson, I find that the circumstances of the present case differ from those in Nielsen v Denmark. The factual basis of the latter case was the placement of a 12-year-old boy in the psychiatric ward of a hospital at the request of the mother, who had sole parental rights. Such a situation cannot be compared with the placement of an adult against her will in a nursing home, which was what happened in the present case. The Court considered that the facts in Nielsen amounted to an exercise of parental rights by the mother, not a restriction on freedom of movement by the State. In so far as the Court went on to state that the restriction involved in the child’s placement in a secure psychiatric ward did not amount to a deprivation of liberty, this statement (which has been subject to certain extra-judicial criticism) is linked to the particular facts and circumstances of that case and, specifically, the fact that the decision to hospitalise the child was taken by the mother in the exercise of her parental rights; Nielsen is again clearly distinguishable from the present case.”

That view seems to have been accepted by the Court in HL v United Kingdom (2004) 40 EHRR 761 at para [93], where the Court explained its decision in Nielsen v Denmark as follows:

“That case turned on the specific fact that the mother had committed the applicant minor to an institution in the exercise of her parental rights, pursuant to which rights she could have removed the applicant from the hospital at any time.”

That, as I read it, is an authoritative pronouncement by the Strasbourg court itself as to the true basis of the decision in Nielsen v Denmark (1988) 11 EHRR 175. Read in that way, Nielsen v Denmark (1988) 11 EHRR 175 is, in my judgment, of no assistance in a case such as the one with which I am here concerned.

The next case is HM v Switzerland (2002) 38 EHRR 314. The facts (see at paras [9], [18], [21], [24], [27] and [28])were that on 17 December 1996 the relevant Swiss public authority made an order under section 397 of the Swiss Civil Code ordering the placement in a nursing home for an unlimited period of an 84 year old woman. Section 397 provided that:

“An elderly or incapacitated person may be placed or retained in a suitable institution on account of mental illness, mental disability, alcoholism, other addictions or serious neglect, if the person cannot otherwise be afforded the necessary personal care.

… The person concerned must be released as soon as the situation permits.”

The basis of the applicant’s placement was that she required permanent treatment in view of her leg sores and cataract, that she no longer received care from a doctor or an association, that it was not certain that she had enough to eat, that the conditions of hygiene in her unheated flat were “intolerable”, and that this situation, which had already lasted for many years, would not change in the foreseeable future. She was placed in the nursing home on 20 December 1996.

The applicant appealed to the relevant Swiss judicial authority. At a hearing on 16 January 1997 she explained that she had no reason to be unhappy with the nursing home, that, as she could no longer walk, it would be better for her to stay there, and that she did not see how matters could get better for her. However, she also said that she “wanted to get out of” the home. Her appeal was dismissed, the judges expressing the view that “the applicant was hardly aware of the deprivation of liberty, which was minimal, and in fact it mainly affected her son, who did not want to leave his mother.” On 14 January 1998 the placement order was lifted as the applicant had agreed to reside in the nursing home of her own free will.

The applicant submitted (see para [32]) that she had been placed in the nursing home against her will, that in the home she was no longer free to make decisions about her place of residence or her daily life and that she was unable to return home, as she would have been brought back again. She said that it was irrelevant that she had later agreed to stay in the nursing home, since she disagreed with the original decision which had deprived her of her liberty.

The Government of Switzerland (see para [35]) drew attention to the facts that the nursing home was an open institution with complete freedom of movement, to the extent that the applicant was able to occupy herself, that the applicant, who was never in the secure ward, was free to have personal contacts, write letters or make telephone calls, and that the only limitation on the applicant was that she had to respect the hours fixed for the necessary medical treatment.

The Court set out the relevant principles at para [42], referring to what it had earlier said in Ashingdane v United Kingdom (1985) 7 EHRR 528 at para [41] in the passage I have already cited at paragraph [16] above.

The Court then set out the passage in Nielsen v Denmark (1988) 11 EHRR 175 at para [70] which I have cited at paragraph [21] above before proceeding to consider the circumstances of HM’s case. It drew attention (at para [45]) to the fact that the applicant was not placed in the secure ward of the home but, rather, had freedom of movement and was able to maintain social contact with the outside world and (at para [47]) to the fact that, after moving to the home, the applicant had agreed to stay there, as a result of which the placement order had been lifted.

Holding that the applicant had not been “deprived of [her] liberty” the Court said at para [48]:

“Bearing these elements in mind, in particular the fact that the [authorities] had ordered the applicant’s placement in the nursing home in her own interests in order to provide her with the necessary medical care and satisfactory living conditions and standards of hygiene, and also taking into consideration the comparable circumstances in Nielsen, the Court concludes that in the circumstances of the present case the applicant’s placement in the nursing home did not amount to a deprivation of liberty within the meaning of Article 5(1), but was a responsible measure taken by the competent authorities in the applicant’s interests. Accordingly, Article 5(1) is not applicable in the present case.”

Two of the Judges (Judges Gaukur Jörundsson and Loucaides) dissented from the conclusion of the majority that there had been no deprivation of liberty, though one of them (Judge Gaukur Jörundsson) went on to hold that the deprivation of liberty was nonetheless lawful under Article 5(1)(e).

As I have already mentioned, the dissenting judges rejected the view that the circumstances in Nielsen v Denmark were comparable to the circumstances in HM v Switzerland. But there are further passages in their opinions which are of importance.

In his concurring opinion Judge Gaukur Jörundsson said:

“It is true that the applicant was not “under lock and key” within the nursing home, and that she was able to have personal contacts, to write letters and to telephone the outside world. In my opinion, however, it is clear that she was not permitted to leave the institution and go home, and that, if she did, she would have been brought back to the nursing home. Thus, I find that the present circumstances differ from those in Nielsen v. Denmark which involved a minor who was temporarily placed in a locked psychiatric ward of a State hospital, at his mother’s request, for therapeutic purposes. Thus, the present applicant had been placed under guardianship, though the latter measure was eventually lifted.

In these circumstances, I consider that the applicant’s placement in the nursing home amounted to a deprivation of liberty within the meaning of Article 5(1) of the Convention.”

Judge Loucaides in his dissenting opinion said this (citations omitted):

“As regards my finding that there has been a deprivation of the applicant’s liberty, I adopt the reasoning of Judge Gaukur Jörundsson. But I would like to add on this subject the following: The applicant’s placement in the nursing home was against her will. It was implemented by the police under an order explicitly defined by the national law itself and referred to by the national authorities as a measure of deprivation of liberty, and she was not permitted to leave the nursing home. In these circumstances, I cannot see how her situation could be regarded as anything else than a deprivation of liberty.

In Ashingdane v The United Kingdom … it was found that a person kept compulsorily in a mental hospital was protected by Article 5 even though he was in an “open” (that is to say, unlocked) ward and was permitted to leave the hospital unaccompanied during the day and over the weekend. Therefore, the fact referred to by the majority that “the applicant was not placed in the secure ward of the nursing home ... Rather, she had freedom of movement and was able to maintain social contact with the outside world” does not in any way change the reality and severity of the restrictive regime in which the applicant was placed, as described above.

Detainees in prisons and other places of detention, which amount to typical cases of deprivation of liberty for the purposes of Article 5 of the Convention, may be allowed to move freely within defined areas and have social contact with the outside world through telephone calls, correspondence and visits, for example; some may also be allowed day release. Yet, so long as they (like the applicant) are not permitted to leave the place where they are detained and go anywhere they like and at any time they want they are certainly “deprived of their liberty”.”

Judge Loucaides went on to identify how the majority, impermissibly in his opinion, had confused two separate and quite distinct questions: First, has there been a deprivation of liberty? Secondly, if so, can it be justified?

“The majority appear to have relied heavily on “the fact that the [authorities] ordered the applicant’s placement in the nursing home in her own interests in order to provide her with the necessary medical care and satisfactory living conditions and standards of hygiene” (emphasis added). Relying on that consideration and taking into account the “comparable circumstances in Nielsen”, the majority concluded that “the applicant’s placement in the nursing home did not amount to a deprivation of liberty within the meaning of Article 5(1), but was a responsible measure taken by the competent authorities in the applicant’s interests” (emphasis added).

It is my opinion that 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.”

If the true explanation of the decision in HM v Switzerland (2002) 38 EHRR 314 is indeed to be found in what the Court said at para [48], then I can only say, with all respect, that I find myself in some difficulty, for there is, if I may be permitted to say so, very considerable force as it seems to me in what Judge Loucaides said in his dissenting opinion. In particular, and for the reasons given by Judge Loucaides, 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.

In fact, as it seems to me, I am spared this embarrassment for, just as in the case of Nielsen v Denmark (1988) 11 EHRR 175, one has to look to subsequent decisions of the Strasbourg court to find the true explanation of what is otherwise the very puzzling decision in HM v Switzerland (2002) 38 EHRR 314, and those decisions show, as I read them, that the determining factor was in truth HM’s apparent consent.

The first step in the retreat was marked by HL v United Kingdom (2004) 40 EHRR 761 at para [93], where the Court said this:

“Considerable reliance was placed by the Government on HM v Switzerland, in which it was held that the placing of an elderly applicant in a foster home, to ensure necessary medical care as well as satisfactory living conditions and hygiene, did not amount to a deprivation of liberty within the meaning of Article 5 of the Convention. However, each case has to be decided on its own particular “range of factors” and, while there may be similarities between the present case and HM v Switzerland, there are also distinguishing features. In particular, it was not established that HM was legally incapable of expressing a view on her position. She had often stated that she was willing to enter the nursing home and, within weeks of being there, she had agreed to stay. This, combined with a regime entirely different to that applied to the present applicant (the foster home was an open institution which allowed freedom of movement and encouraged contact with the outside world), leads to the conclusion that the facts in HM v Switzerland were not of a “degree” or “intensity” sufficiently serious to justify the finding that she was detained (see Guzzardi v Italy at para [93]).”

More explicitly, in Storck v Germany (2005) 43 EHRR 96 at para [77] the Court provided this explanation of its decision in HM v Switzerland:

“The applicant’s lack of consent must also be regarded as the decisive feature distinguishing the present case from the case of HM v Switzerland, in which it was held that the placing of an elderly person in a foster home to ensure the necessary medical care had not amounted to a deprivation of liberty. However, the applicant in that case, who had been legally capable of expressing a view, had been undecided as to whether or not she wanted to stay in the nursing home. The clinic could then draw the conclusion that she did not object.”

This, as it seems to me, is an authoritative pronouncement by the Strasbourg court as to the true basis of the decision in HM v Switzerland (2002) 38 EHRR 314. And read in this way, HM v Switzerland (2002) 38 EHRR 314 is of very little assistance in the present case, where DE seemingly lacks capacity to consent and in any event, as we shall see, has throughout vigorously objected to his stay in both the X home and the Y home.

The next case is HL v United Kingdom (2004) 40 EHRR 761, a decision of the Strasbourg court arising out of the decision of the House of Lords in R v Bournewood Community and Mental Health NHS Trust ex p L [1999] 1 AC 458.

The decision of the House of Lords pre-dated the coming into force of the Human Rights Act 1998. The House was therefore concerned not with the question of whether there had been a deprivation of liberty within the meaning of Article 5 but rather with the question of whether there had been a detention for the purposes of the tort of false imprisonment. On that issue the House was divided. Three of their Lordships held that L had not been detained. Two (one of whom was Lord Steyn) held that L had been detained.

In the course of his speech Lord Steyn said this at page 494:

“It is unnecessary to attempt a comprehensive definition of detention. In my view, this case falls on the wrong side of any reasonable line that can be drawn between what is or what is not imprisonment or detention. The critical facts are as follows. (1) When on 22 July 1979 at the day centre L became agitated and started injuring himself, he was sedated and then physically supported and taken to the hospital. Even before sedation he was unable to express dissent to his removal to hospital. (2) Health care professionals exercised effective power over him. If L had physically resisted, the psychiatrist would immediately have taken steps to ensure his compulsory admission. (3) In hospital staff regularly sedated him. That ensured that he remained tractable. This contrasts with the position when he was with carers: they seldom resorted to medication and then only in minimal doses. (4) The psychiatrist vetoed visits by the carers to L. She did so, as she explained to the carers, in order to ensure that L did not try to leave with them. The psychiatrist told the carers that L would be released only when she, and other health care professionals, deemed it appropriate. (5) While L was not in a locked ward, nurses closely monitored his reactions. Nurses were instructed to keep him under continuous observation and did so.

Counsel … argued that L was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of L, any possible resistance by him was overcome by sedation, by taking him to hospital, and by close supervision of him in hospital. And, if L had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that L was free to go is a fairy tale.

At one stage counsel … suggested that L was not detained because he lacked the necessary will, or more precisely the capacity to grant or refuse consent. That argument was misconceived. After all, an unconscious or drugged person can be detained: see Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44, 53-54, per Atkin LJ (dictum approved in Murray v. Ministry of Defence [1988] 1 WLR 692, 701-702, per Lord Griffiths). In my view L was detained because the health care professionals intentionally assumed control over him to such a degree as to amount to complete deprivation of his liberty.”

The Strasbourg court, by contrast, was concerned with the different question (see paragraph [14] above) of whether HL had been “deprived of his liberty” within the meaning of Article 5(1). It held that he had.

The Government of the United Kingdom relied (see at para [84]) upon Nielsen v Denmark (1988) 11 EHRR 175 and HM v Switzerland (2002) 38 EHRR 314 in support of its contention that the applicant had not been detained. In contrast (see at para [86]), the applicant:

“maintained that the Convention notion of detention was more flexible than that of the House of Lords and included notions of psychological detention, potential detention (perceived threat of restraint) and the removal of the means of escape. He also agreed that the Ashingdane test had to be applied in order to determine in a specific case whether a person had been detained so that the type, duration, effects and manner of implementation of the measure in question had to be examined.”

The Court, as we have already seen (see paragraph [16] above) applied the test established in Guzzardi v Italy (1980) 3 EHRR 333 and Ashingdane v United Kingdom (1985) 7 EHRR 528. It then made this important observation at para [90]:

“considerable emphasis was placed by the domestic courts, and by the Government, on the fact that the applicant was compliant and never attempted, or expressed the wish, to leave. The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The Court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the Court accept as determinative the fact relied on by the Government that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The Court reiterates that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention (see De Wilde, Ooms and Versyp v Belgium (1971) 1 EHRR 373 at paras [64]-[65]), especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action.”

The Court continued at paras [91]-[92]:

“[91] Turning therefore to the concrete situation, as required by Ashingdane, the Court considers the key factor in the present case to be that the health care professionals treating and managing the applicant 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.

More particularly, the applicant had been living with his carers for over three years. On 22 July 1997, following a further incident of violent behaviour and self-harm at his day-care centre, the applicant was sedated before being brought to the hospital and subsequently to the IBU, in the latter case supported by two persons. His responsible medical officer (Dr M) indicated clearly that, had the applicant resisted admission or subsequently tried to leave, she would have prevented him from doing so and would have considered his involuntarily committal under section 3 of the 1983 Act. Indeed, as soon as the Court of Appeal indicated that his appeal would be allowed, he was compulsorily detained under the 1983 Act. The correspondence between the applicant’s carers and Dr M reflects both the carers’ wish to have the applicant immediately released to their care and, equally, the clear intention of Dr M and the other relevant health care professionals to exercise strict control over his assessment, treatment, contacts and, notably, movement and residence; 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. While the Government suggested that “there was some evidence” that the applicant had not been denied access to his carers, it is clear from the above-noted correspondence that the applicant’s contact with his carers was directed and controlled by the hospital, his carers not visiting him after his admission until 2 November 1997.

Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary is, in the Court’s view, fairly described by Lord Steyn as “stretching credulity to breaking point” and as a “fairy tale”.

[92] The Court would therefore agree with the applicant that it is not determinative whether the ward was “locked” or “lockable” (the evidence before the House of Lords and the Commissioner appearing to differ on this point). In this regard, it notes that the applicant in Ashingdane was considered to have been “detained” for the purposes of Article 5(1)(e) even during a period when he was in an open ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital.”

That, it will be recalled, was the very point made by Judge Loucaides in his dissenting opinion in HM v Switzerland.

The Court then went on to explain in para [93] why both Nielsen v Denmark (1988) 11 EHRR 175 and HM v Switzerland (2002) 38 EHRR 314 were distinguishable. I have already set out the relevant passages (see paragraphs [33] and [49] above).

The final case is Storck v Germany (2005) 43 EHRR 96, where the applicant had for many years been in a psychiatric institution. The competing contentions of the parties were summarised by the Court at paras [69]-[70]:

“[69] The applicant maintained that she had been detained against her will in Dr Heines’s clinic. Referring to the findings of the Bremen Regional Court, she stressed that she had objected to her confinement in that clinic, where she had been placed in a locked ward and had been unable to contact others.

[70] The Government contested this view. They submitted that the applicant had not been deprived of her liberty, as she had consented to her stay in Dr Heines’s clinic. Otherwise, the applicant would certainly not have returned voluntarily to that clinic in 1981.”

Having referred (at para [71]) to the relevant principles, the Court continued at para [73]:

“Having regard to the factual situation of the applicant in the clinic in Bremen, the Court notes that it is undisputed that the applicant was placed in a locked ward at that clinic. She was under the continuous supervision and control of the clinic personnel and was not free to leave the clinic during her entire stay there of some 20 months. When the applicant attempted to flee it was necessary to shackle her in order to secure her stay in the clinic. When she once succeeded in escaping, she had to be brought back by the police. She was also unable to maintain regular social contact with the outside world. Objectively, she must therefore be considered to have been deprived of her liberty.”

The Court then proceeded in paras [74]-[76] to address what it referred to as the “subjective element” (citations omitted):

“[74] However, the notion of deprivation of liberty within the meaning of Article 5(1) does not only comprise the objective element of a person’s confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his or her liberty if, as an additional subjective element, he or she has not validly consented to the confinement in question. The Court notes that in the present case, it is disputed between the parties whether the applicant had consented to her stay in the clinic.

[75] Having regard to the national courts’ related findings of fact and to the factors which are undisputed between the parties, the Court observes that the applicant had attained the age of majority at the time of her admission to the clinic and had not been placed under guardianship. Therefore, she was considered to have the capacity to consent or object to her admission and treatment in hospital. It is undisputed that she did not sign the clinic’s admission form prepared on the day of her arrival. It is true that she came to the clinic herself, accompanied by her father. However, the right to liberty is too important in a democratic society for a person to lose the benefit of the Convention protection for the single reason that he may have given himself up to be taken into detention.

[76] Having regard to the continuation of the applicant’s stay in the clinic, the Court considers the key factor in the present case to be that – as is uncontested – the applicant tried on several occasions to flee from the clinic. She had to be shackled in order to prevent her from absconding and had to be brought back to the clinic by the police when she managed to escape on one occasion. Under these circumstances, the Court is unable to discern any factual basis for the assumption that the applicant – presuming that she had the capacity to consent – agreed to her continued stay in the clinic. In the alternative, assuming that the applicant was no longer capable of consenting following her treatment with strong medication, she cannot, in any event, be considered to have validly agreed to her stay in the clinic.”

Finally, the Court turned (at para [77]) to consider its earlier decisions in HM v Switzerland (2002) 38 EHRR 314 and HL v United Kingdom (2004) 40 EHRR 761:

“Indeed, a comparison of the facts of this case with those in HL v the United Kingdom cannot but confirm this finding. That case concerned the confinement of an individual who was of the requisite age but lacked the capacity to consent in a psychiatric institution which he had never attempted to leave; the Court found that there had been a deprivation of liberty. In the present case, a fortiori, it must be concluded that there was a deprivation of liberty. The applicant’s lack of consent must also be regarded as the decisive feature distinguishing the present case from the case of HM v Switzerland, in which it was held that the placing of an elderly person in a foster home to ensure the necessary medical care had not amounted to a deprivation of liberty. However, the applicant in that case, who had been legally capable of expressing a view, had been undecided as to whether or not she wanted to stay in the nursing home. The clinic could then draw the conclusion that she did not object.”

For these reasons the Court concluded that the applicant was deprived of her liberty within the meaning of Article 5(1) of the Convention.

There is one domestic authority to which I ought to refer, not least because Ms Morris, on behalf of SCC, placed some reliance upon it.

In Secretary of State for the Home Department v Mental Health Review Tribunal (PH, interested party) [2002] EWCA Civ 1868, a Mental Health Review Tribunal had directed the conditional discharge of a restricted patient, PH, detained in Broadmoor Hospital. Four conditions were imposed:

“(1)

[PH] continue to take and receive medication as prescribed.

(2)

[PH] accept and comply with regular supervision by a consultant psychiatrist and social supervisor.

(3)

[PH] reside at suitable specialist accommodation which provides 24 hour trained nursing care and daytime trained psychiatric nursing care and appropriate security.

(4)

[PH] shall not leave the accommodation without an escort.”

The question then arose as to whether the Tribunal had power to impose those conditions, the argument being (see para [9]) that the conditions imposed by the Tribunal, in particular conditions 3 and 4, were so restrictive as to deprive PH of his liberty, with the result that he would continue to be detained, albeit in a situation of lower security. (It was common ground that the Tribunal only has the power to discharge a patient from detention and to impose conditions upon discharge. It has no power to direct the transfer of a patient from one detaining institution to another. Therefore, it was said, the Tribunal had acted ultra vires.)

In other words, the question for the court (see at para [13]) was whether PH would be “deprived of his liberty” within the meaning of Article 5 if subjected to a regime including conditions (3) and (4). In fact (see para [19]) the actual question for the court was rather narrower, for it was conceded that, as the full detail of the measures contemplated by the Tribunal’s conditions was as yet unknown, the challenge on this ground could succeed only if it could be demonstrated that the implementation of the conditions would “inevitably” involve PH’s continued detention. Elias J held that the Secretary of State (who brought the challenge to the Tribunal’s decision) had failed to establish this. His decision was upheld by the Court of Appeal.

The Tribunal’s thinking had been explained in a witness statement made by the President of the Tribunal, Miss Linda Sullivan QC. The key parts of her evidence were summarised by Keene LJ at para [22]:

“In her statement, Miss Sullivan emphasises that one of the major factors underpinning the Tribunal’s approach to the conditions was their awareness of PH’s need for assistance and care in respect of his physical needs. She states that:

“in view of his long incarceration, [PH] would require (initially at least) a significant amount of support in terms of his interaction with the public and with the outside world.”

The reference in condition 3 to “appropriate security” was not intended to suggest that he needed to be in any kind of locked facility, but that there would be a degree of supervision in place for the benefit of the residents, such as that which obtains for residents with problems such as dementia who would not be best placed to safeguard their own welfare. As for the requirement that he be escorted when outside the home, this, according to the witness statement, was imposed so as to facilitate rather than inhibit his freedom. The Tribunal was aware that he had not lived in the outside world for many years and there were concerns that he would become disorientated or would find it difficult to cope with such things as traffic and the value of money, especially since decimalisation.”

Keene LJ expressed his conclusions at para [24]:

“I cannot accept that conditions 3 and 4 inevitably mean that this man would be in a regime so restrictive that he would be deprived of his liberty. Condition 3 is sufficiently broadly phrased as to allow for measures which would fall short of such a deprivation, and both it (where it deals with security) and condition 4 have as their purpose the protection of PH himself and would therefore be in his interests. I should add that there is some evidence to indicate that, in at least one care home, the staffing arrangements would be such as to enable PH to go out with an escort whenever he chose to do so. On this principal issue, therefore, I conclude that the conditions would not involve his transfer from one state of detention to another state of detention. They are therefore not ultra vires.”

In arriving at that conclusion the Court of Appeal considered the Strasbourg jurisprudence. In a well-known passage at paras [14]-[17] Keene LJ summarised the relevant principles:

“[14] There is little dispute about the principles established in the Strasbourg jurisprudence as applicable to the interpretation of Article 5(1). First, a basic distinction is to be drawn between mere restrictions on liberty of movement and the deprivation of liberty. The former are governed by Article 2 of Protocol no. 4 and do not amount to a breach of Article 5. This has been repeatedly spelt out by the European Court of Human Rights in cases such as Guzzardi v Italy (1980) 3 EHRR 333, Ashingdane v United Kingdom (1985) 7 EHRR 528 and HM v Switzerland (2002) 38 EHRR 314.

[15] Secondly, the distinction is one merely of degree or intensity of restrictions, not of nature or substance. Thirdly, the court must start with the concrete or actual situation of the individual concerned and take account of a range of criteria, such as the type, duration, effects and manner of implementation of the measure in question. Fourthly, account must be taken of the cumulative effect of the various restrictions. All these principles flow from the cases cited above.

[16] Fifthly, the purpose of any measures of restriction is a relevant consideration. If the measures are taken principally in the interests of the individual who is being restricted, they may well be regarded as not amounting to a deprivation of liberty and so no breach of Article 5(1) would arise. This principle can be seen in two Strasbourg decisions. In Nielsen v Denmark (1988) 11 EHRR 175 a child of about 12 was placed in a hospital psychiatric ward for children as a result of a decision by his mother, based upon medical advice. He claimed that there had been a breach of his Article 5 rights, but the European Court of Human Rights found that the objective of his hospitalisation was the protection of his health. The restrictions imposed were not in principle different from those obtaining in many hospital wards where children with physical disorders were treated. It was concluded that this regime did not amount to a deprivation of liberty within the meaning of Article 5 but was:

“a responsible exercise by his mother of her custodial rights in the interests of the child” – para 73.

[17] The second decision illustrating this principle is perhaps of greater relevance to the present appeal. In HM v Switzerland the applicant was a woman who at the age of 84 had been placed compulsorily in a foster home. The Court found that she had been placed there by the Swiss authorities in her own interests in order to provide her with necessary medical care and satisfactory living conditions and hygiene. In those circumstances the Court concluded, citing the Nielsen case, that her placement did not amount to a deprivation of liberty within Article 5(1), but was a responsible measure taken by the competent authorities in the applicant’s interests. Therefore, there was no violation of Article 5(1).”

It is important to note that the decision in Secretary of State for the Home Department v Mental Health Review Tribunal (PH, interested party) [2002] EWCA Civ 1868 preceded the decisions of the Strasbourg court in both HL v United Kingdom (2004) 40 EHRR 761 and Storck v Germany (2005) 43 EHRR 96. In my judgment, therefore, one has to approach Keene LJ’s analysis of Nielsen v Denmark (1988) 11 EHRR 175 and HM v Switzerland (2002) 38 EHRR 314, and more particularly the conclusions he sought to draw from those two cases, with an appropriate degree of caution. In the light of the subsequent decisions of the Strasbourg court, I doubt that Nielsen v Denmark (1988) 11 EHRR 175 and HM v Switzerland (2002) 38 EHRR 314 can any longer safely be treated as authority for the proposition that “If the measures are taken principally in the interests of the individual who is being restricted, they may well be regarded as not amounting to a deprivation of liberty” – a proposition which, so far as I can see, receives absolutely no support from either HL v United Kingdom (2004) 40 EHRR 761 or Storck v Germany (2005) 43 EHRR 96.

So much for the case-law. I was helpfully referred to various materials published by the Department of Health in the wake of the Strasbourg court’s decision in HL v United Kingdom (2004) 40 EHRR 761: the Department of Health’s Advice on the decision of the European Court of Human Rights in the case of HL v UK (the “Bournewood” case) published on 10 December 2004, the Department of Health’s “Bournewood” Consultation published in March 2005, the Department of Health’s Protecting the Vulnerable: the “Bournewood” Consultation – Summary of responses published in June 2006 and the Department of Health’s Bournewood Briefing Sheet also published in June 2006. This material, while of great interest, did not, in the final analysis, throw any very useful light on the only point with which I am at present concerned. I propose therefore to say no more about it.

Perhaps not surprisingly Ms Morris submits that HM v Switzerland (2002) 38 EHRR 314 provides the closest and most useful comparison to the instant case. She also relies in particular upon Secretary of State for the Home Department v Mental Health Review Tribunal (PH, interested party) [2002] EWCA Civ 1868. It will be apparent from what I have already said that, in my judgment, neither provides her with the firmest of foundations.

Ms Richards, on behalf of DE, and Mr Bowen, on behalf of JE, make common cause. Ms Richards submits that Ms Morris’s reliance upon HM v Switzerland (2002) 38 EHRR 314 is misplaced. She submits that it is clear from the subsequent Strasbourg case-law (HL v United Kingdom (2004) 40 EHRR 761 and Storck v Germany (2005) 43 EHRR 96) that the basis for the decision in HM v Switzerland (2002) 38 EHRR 314 was not the fact that placement in the foster home was in HM’s best interests, but the fact that HM was content with and did not oppose the placement. (The facts in the present case, she says, are very different. Unlike HM, DE repeatedly expresses the wish to be living at home and with JE. So, she says, the reasoning in HM v Switzerland (2002) 38 EHRR 314 clearly does not apply in the present case.)

Ms Richards also cautions against too uncritical a reliance upon Secretary of State for the Home Department v Mental Health Review Tribunal (PH, interested party) [2002] EWCA Civ 1868. She points out that, even before the decisions of the Strasbourg court in HL v United Kingdom (2004) 40 EHRR 761 and Storck v Germany (2005) 43 EHRR 96, Collins J in R (Secretary of State for the Home Department) v Mental Health Review Tribunal [2004] EWHC 2194 (Admin) at para [11] had described it as “an unusual case” and that Silber J in MP v Nottinghamshire Healthcare NHS Trust [2003] EWHC 1782 (Admin) at para [31] had described it as a case depending “entirely on its own unique facts.” She also referred me to what Collins J had said in R (G) v Mental Health Review Tribunal [2004] EWHC 2193 (Admin). Referring to HM v Switzerland (2002) 38 EHRR 314, Collins J observed at para [12] that “the purpose of any measure of restriction, while a relevant consideration, must not be given too much weight.” He went on in para [13] to make this important point:

“Any detention of a mentally ill person for treatment may be regarded as in his best interests, but that cannot prevent such detention being a deprivation of liberty within the meaning of Article 5.”

Neither Silber J nor Collins J had the advantage of seeing what the Strasbourg court said in HL v United Kingdom (2004) 40 EHRR 761 and Storck v Germany (2005) 43 EHRR 96. The most recent authority to which they were referred was HM v Switzerland (2002) 38 EHRR 314. Matters, of course, have moved on since then. Moreover, Elias J and the Court of Appeal did not decide in Secretary of State for the Home Department v Mental Health Review Tribunal (PH, interested party) [2002] EWCA Civ 1868 that PH was not deprived of his liberty. The only decision was that his conditions did not “inevitably” involve a deprivation of liberty (see paragraphs [66] and [68] above).

In my judgment, the starting point, and the defining test, remains the principle laid down in the passages in Guzzardi v Italy (1980) 3 EHRR 333 and Ashingdane v United Kingdom (1985) 7 EHRR 528 which I set out in paragraphs [15] and [16] above. And for reasons which I have already set out it seems to me that Nielsen v Denmark (1988) 11 EHRR 175 is of no assistance and HM v Switzerland (2002) 38 EHRR 314 is of very little assistance in the present case. Of much more assistance are the two most recent Strasbourg authorities, HL v United Kingdom (2004) 40 EHRR 761 and Storck v Germany (2005) 43 EHRR 96.

Mr Bowen, for whose submissions on this point I am particularly grateful, submits that the question whether a person is ‘deprived of his liberty’ within the meaning of Article 5(1) can be stated in the following propositions:

I agree with Mr Bowen’s formulation which, within the inevitable limits of compression, seems to me to be an entirely accurate and indeed helpful encapsulation of the Strasbourg jurisprudence.

I can summarise the background for present purposes quite briefly.

DE is now aged 76. A major stroke in 2003 left him blind and with significant short-term memory impairment. He is disorientated and needs assistance with all the activities of daily living. He needs a guide when walking. Although he suffers from dementia he is able to express his wishes and feelings with some clarity and force, though expert evidence suggests that he has a psychological dependence on others which is greater than that arising from his physical disabilities, so there is room for debate as to just how genuinely independent his expressions of wish actually are. Although this is a matter for final determination at the hearing in January 2007, the available evidence strongly suggests that DE lacks the capacity to decide where he should live. Indeed, as we have seen, Judge Bloom has already made an interim declaration to that effect.

DE and JE have known each other for many years, though they married as recently as 23 June 2005. Until 2004 they each, as I understand it, lived in their own homes. On 15 July 2004 DE was provided with respite accommodation at the X home. On 3 August 2004 he was taken by JE to live at her home. He was placed by SCC at the X home on 4 September 2005 following an incident earlier that day at the matrimonial home. JE, who has intermittent mental health problems of her own, felt that she could not care for DE. She placed him in a chair on the pavement in front of their house and called the police.

SCC’s perception at the time of the events of 4 September 2005 is best taken from its case note dated 5 September 2005:

“19-30hrs. PC Black rang to inform [JE] had put her husband out on the street. Following a report from a neighbour he attended home address to find [DE] who is 75 & blind, wandering down the road. [JE] told him she is not getting help from the Social Services & has thrown him out. This having happened about half an hour ago, & [DE] not having eaten all day. PC had taken him to PS for a meal. [JE] is refusing to open the door & he does not have keys. He is dressed only in pyjama bottoms & shirt with slippers. No-one locally available to take him in. Following discussion with Homecare RRT rang [JE]. She spoke almost incessantly & very critical of Social Services & [JE]’s family. She said she could no longer afford to keep him in Fags, food & pay his bills. Said [DE] should ring his family in Devon, for which she had 4 tel. no’s and tell them to Fuck off out of his life for good & to unfreeze his money. She said this should happen at the police station, where it should be recorded. Said not prepared to have him home till that happened. She was very critical of services being provided & of some services not being provided at all. Referred to [DE] needing 24 hr care but she only got 2 hrs help a day during week & 1 hour at W/E’s. Said carer had not brought shopping as requested yesterday & did not turn up today at all. Consequently neither of them had eaten today. Following further discussions with RRT to confirm attendance of [carer] tomorrow spoke again to [JE] but she was adamant she would not let her husband home till her demands met that he contact his family. Subsequently in liaison with police & [DE] emergency placement arranged for him at [the X home] & escorted there by police. Message left for daughter … but no reply.”

Since 4 September 2005, as I have said, DE has been placed by SCC initially at the X home and, since 14 November 2005, at the Y home. The question is whether in all the circumstances DE has been “deprived of his liberty”. This is essentially a question of fact, to be considered in the light of all the circumstances and focussing upon the “concrete situation of the individual concerned” – here DE. Sometimes the answer will be obvious. But in a case such as this an intense scrutiny of the facts is called for. I must, therefore, examine the evidence with some care.

There are various strands to the evidence. I propose to examine each strand separately rather than adopting a merely chronological approach.

It is convenient first to describe DE’s situation first at the X home and then at the Y home. This has been described in witness statements by, respectively, Ms Jean Hills, SCC’s team manager, and Ms Lisa Soper, the manager of the Y home. So far as it goes their account is not challenged by anyone.

At the X home DE’s room was on the second floor, so he would have had to come down stairs or use the lift to exit the building. The front door was operated by pushing a button on the wall to release the door. Ms Hills comments that, given his disabilities, DE would have been unlikely to have been able to find the exit doors and open them without assistance.

DE has his own room at the Y home. He can summon staff by bell if he needs help. He tends to prefer to spend time in his room rather than with other residents in the communal areas. Ms Soper continues:

“[DE] is of course free to leave his room unaccompanied at any time he wishes. Due to his visual and cognitive impairments, he does not feel safe doing this. He has unfettered access to the communal garden, the dining room, the lounge area and any other resident’s room. He is able to use the telephone when he wants. It is situated in the front hall. He can also use the telephone in my office when it is busy. However, the reality is that [DE] is unable, due to his needs, to remember a number and dial it himself. He tends not to ask to make phone calls. Instead staff prompt him to make phone calls for example when his wife is in hospital. He is contacted regularly by both his daughter and his wife.

[The Y home] has a key pad entry system, so service users would need to be able to use the key pad to open the doors to get out into the local areas. If service users wish to go out generally they ask the staff and we enter the code. This system was installed not to stop service users from leaving, but following an incident in another Surrey home where people were able to enter and exit the building without staff knowledge. [JE] was pleased when this system was installed as she voiced concerns previously that people were free to enter the building as they liked. This system was only installed in or around February [2006], prior to this service users were free to enter or exit the building without asking/informing staff.”

She adds:

“[DE] never tried to leave [the Y home] prior to February 2006, and since the key pad system has been installed he has never asked staff to open the door for him to enable him to leave [the Y home].

[DE] has not in fact expressed any wish to leave the home for any reason other than to live with [JE]. [DE] has however been taken out by staff for short walks into the community. These trips arise following prompting and encouragement by the staff. [DE] only sometimes responds positively to these suggestions. Due to his high level of dependency it would be inappropriate for [DE] to go for walks on his own. [DE] himself has never suggested that he might want to go anywhere unaccompanied.

… [DE] does make statements that he wants to be with [JE] generally these follow visits from his wife, or other visiting professionals. On occasions [DE] does say to the Night Staff that he wants to be with [JE]. All these are recorded in his care notes …

[DE] also states that he wants to go home to live with [JE]. When this happens, staff endeavour to reassure [DE] that [JE] is trying to do that. He has never requested to go immediately with [JE]. The team do not get into any detailed discussions with [DE] about this. They listen, support and reassure. As a regular daily occurrence [DE] does not request to be taken home to [JE].”

Another strand in the evidence is reflected in the detailed care notes kept by the Y home in respect of DE. I have the complete notes for the period from 14 November 2005 (the day DE was placed there) down to 31 August 2006.

The notes record that from the very first day DE was repeatedly saying that he wanted to go home with JE, that he wanted to be with JE.

“[DE] continually requested to go home with [JE]. I have informed him he cannot leave, neither can [JE] take him home” (14 November 2005). “[DE] stated to [JE] that “his life isn’t worth living if he can’t be with [JE]” … [DE] has been say [sic] he’s ready and well enough to return home with his wife” (15 November 2005). “[DE] constantly reassuring his wife he wanted only her in his life” (16 November 2005). “[DE] kept asking [JE] if “he was ready to go home” and saying his place was with her” (17 November 2005). “[DE] … mentioned about “being held here … against his will”” (18 November 2005). “[DE and JE] were talking about [DE] being a prisoner here” (20 November 2005). “[DE] stated “You are holding me against my civil rights, all I want to do is be with my wife”… he still insists that he wants to go home: no man should put asunder” (21 November 2005). “[DE] … still insists he wants to go home” (23 November 2005). “He was telling the advocate come and get me I want out of here” (24 November 2005). “(In the course of a telephone conversation with JE) “I’m coming home … I am bloody coming home”” (26 November 2005). “(In the course of a telephone conversation with JE) “It’s my human right to be with my wife”” (1 December 2005). “[DE] kept on saying he wanted to go home and meet his wife” (7 December 2005). “[DE] told me that he wanted to go home and to be with his wife as this was his human right” (9 December 2005). “[DE] told me he wanted to home to back [sic] to stay with his wife” (13 December 2005). “Still wishing to return home to wife” (24 January 2006). “[DE] … saying that “he was a prisoner” and that he wanted “to go home to [JE]”” (10 February 2006). “[JE] asked when he could go back home to [JE]; chatted about wanting to go home to get on with his life” (14 February 2006). “[DE] seems quite concerned about wanting to [go] home and be with [JE]” (21 March 2006). “[DE] rather concerned about [JE] his wife and wanting to go home to her” (22 March 2006). “[DE] told me he just wanted to go home with [JE]. He told me he is being kept here against his will, that he is here under some sort of “section”. Reassured him. [DE] … seemed very unsettled and cross about the fact he could not “go home to [JE]”” (28 March 2006). “Said he hopes to go home to [JE] soon” (2 May 2006). “[DE] has been asking about his wife [JE] and when he will be going back home” (9 May 2006). “[DE] continuing to talk about going home to look after [JE]” (10 May 2006). “[DE] has been asking constantly about his wife and where he is. Wanting to go home” (7 June 2006). “He has asked a lot about his wife” (12 June 2006). “He keeps asking of his wife” (1 July 2006). “[DE] has just told me that he wants to quit smoking. He said he believes “it will help me to get home”. I explained “[I] could not guarantee that he goes home. Only the courts could decide that”” (7 July 2006). “Asking after his wife frequently” (9 August 2006).

A number of other contemporaneous records show very plainly what DE’s consistent wishes and feelings have been, both while at the X home and more recently while at the Y home:

SCC’s view of the matter appears plainly enough from a number of different sources:

I must break off at this point to deal with the events of 7 December 2005. JE arrived at the Y home with a friend and said they wanted to take DE out to the pub. There was an argument. It became quite heated. JE was not allowed to take DE out. Eventually she left. I need not go into all the details. What matters for present purposes is what, if anything, was said to JE to the effect that she could not take DE out and that she would be prevented if she tried.

There are a number of approximately contemporaneous accounts:

In her witness statement Ms Soper gives the following account:

“I suggested to [JE] that there were few places in [town] open at that time of day and would it not be better to take him out earlier in the day. I also suggested that it may be an option to have a member of the care team to support her when taking [DE] out due to his poor mobility. [JE] began shouting and saying that I was refusing to let her take him out. I explained that I wasn’t I was just trying to ensure that [DE] and herself were supported safely in outings. [JE] became angry and stated that I was holding him a prisoner. I explained I wasn’t and that she was free to take him out but I felt that it was in his best interests and hers that a carer supported them. During this discussion, [DE] became distressed.

I was aware at the time that I could not have prevented [JE] from taking [DE] out of [the Y home]. I strongly discouraged her from doing so, and eventually persuaded her that it was not a good idea.”

It will be noted that this does not accord in all respects with the contemporaneous documents.

I resume the chronology at the point I broke off:

JE’s view of the matter is simple. She says that “it has been made clear to me that I was not allowed to take [DE] home with me.” She interpreted the letter of 4 November 2005 as meaning that if she attempted to remove DE from either the X home or the Y home the Police would be called to stop her doing this. She says she was frightened by this and therefore has not attempted to remove DE and take him home. (Ms Richards comments that JE’s interpretation of the letter accords with its natural meaning.) When JE tried to take him out on 7 December 2005 “I was told in clear terms that I was not allowed to remove [DE] from [the Y home].” She has understood that to be the position ever since. At no time has it ever been suggested to her that should she try to remove DE nothing would be done to prevent it.

Ms Hills and Ms Soper attempt to put a different complexion on matters.

In relation to DE’s stay at the X home, Ms Hills said in her witness statement:

“[DE] would have been able to leave the building if he had wanted to but would have required the assistance of another person because of his impairments. [JE] would have been able to assist him to leave had the couple wanted this and the home would not have done anything to stop her other than try to dissuade her.

If however it was clear that [JE] was seriously mentally unwell and that this would pose a risk to [DE] or if she had been abusive to [DE] and it appeared that he did not want to accompany her, the Police would have been called if she insisted on removing him or continued to cause a disturbance.”

In her witness statement, referring to the letter of 4 November 2005, Ms Soper said:

“What I understand this statement to mean is that the police would be called to inform them that a vulnerable adult was being removed from [the Y home]. I would not ask police (and the police would not be able) to prevent [JE] from removing [DE] from [the Y home].”

Referring to the letter and the memorandum of 4 November 2005, she says: “on the basis of this e–mail, and the letter … had [JE] been determined to remove [DE] from [the Y home] I would have called the police to inform them of what was happening.” But, she adds: “Neither I nor the police would have been able to prevent his removal.”

Mr Bowen submits tartly that these assertions belie the evidence, not least that filed by SCC itself. As he points out, some of the care notes kept by the Y home are actually signed by Ms Soper herself, including for example, as I have already mentioned, the very first note I referred to in paragraph [90] above: “[DE] continually requested to go home with [JE]. I have informed him he cannot leave, neither can [JE] take him home.” In fact, during his cross-examination of her, Mr Bowen got Ms Soper to accept that she had told DE that he could not leave to return home with JE, just as she confirmed her understanding that DE was not free to go home with his wife.

EW, as I have already mentioned, is DE’s daughter. I should summarise her position. Her parents separated when she was 10 years old but she continued living with her father until she was 18. EW and DE are devoted to one another. EW sought over many years to help DE with his difficulties and remained in contact with him but, after he became unwell, JE led to contact between EW and DE ending. Contact was restored once DE was accommodated by SCC. EW appeared before me in person and addressed me briefly. She told me that from her perspective whenever she went to see DE whilst he was accommodated by SCC there were no restrictions on her contact with him or where he went with her. She encouraged him to go on outings with her but he was reluctant because of his condition. Her account of DE’s situation whilst accommodated by SCC was not challenged.

SCC’s view of the “present position”, as it is described, is set out in Ms Morris’s skeleton argument. (Although that is the phrase used in the skeleton argument, Ms Morris in her oral submissions explicitly disavowed any suggestion that there had been any change of policy or approach on the part of SCC.) I think in the circumstances that I should set it out in full because it is put before me as being an accurate statement of the facts and not merely an advocate’s submission:

“[SCC] does not consider that [DE] should reside with [JE] because it is not in his best interests given the substantial risks to him. [SCC] will therefore continue to make arrangements to accommodate [DE] at [the Y home] and does not propose to facilitate a move to [DE] residing with [JE].

Should [JE] remove [DE] from the home, neither [SCC] nor the home will physically prevent her. [SCC] and the home will, however, remind [JE] of the terms of the interim declaration in these proceedings and attempt to persuade [DE] and [JE] that he should not leave. If [JE] is abusive to [DE] or he appears not to want to leave, or if there is some disturbance or some other good reason relating to [DE]’s condition as to why he should not leave, then the police will be called. It is accepted, however, that the police will not be able to prevent [JE] from removing [DE].

There are absolutely no restrictions on [DE]’s contacts with [JE] at [the Y home]. Indeed [SCC] facilitates contact by meeting some of [JE]’s travel costs for her visits to [DE]. Nor are there restrictions on [DE]’s contact with [JE] outside [th Y home], save that she should not take him far from his home at [the Y home], there should be an estimated time of return, and [JE] should be sufficiently well to ensure his safety; ideally the trip should be planned so a member of staff should be available to be called out to assist them if needed. [SCC] considers that contact should not be at [JE]’s home because of the risks to him. As with all vulnerable persons, [SCC] would not agree to [JE] taking [DE] on a visit away from the home if she were not reasonably settled and calm and able to protect [DE]. It would be desirable that any outing be local and planned so that they may be suitably supported by a member of staff to ensure [DE]’s safety. However, if [JE] decided to remove [DE] without these arrangements, then [SCC] could not physically prevent her. If the police were summoned, they might act to prevent an assault or breach of the peace, or once away from the home, if [DE] were in danger, the police could be asked to exercise their powers under section 136 of the MHA.

There are no other external restrictions on [DE]’s life: his movements and contacts are completely unrestricted, and he is not subject to any physical or chemical restraints. Dr Jefferys observed the wide range matters over which, having regard to the circumstances, [DE] was able to exercise a choice and his autonomy. In particular, [DE] has regular contact with his daughter which they both enjoy. She is supportive of his placement at [the Y home].”

I think I can fairly summarise Ms Morris’s submissions as follows:

In conclusion Ms Morris submits that if DE’s circumstances are compared to those of HL (HL v United Kingdom (2004) 40 EHRR 761) it is clear that the “controls” placed on him are not nearly so “complete and effective” as those in HL’s case. DE’s circumstances more closely compare, she says, with those of HM (HM v Switzerland (2002) 38 EHRR 314) or PH (Secretary of State for the Home Department v Mental Health Review Tribunal (PH, interested party) [2002] EWCA Civ 1868), and in both those cases the courts, she says, found that the individual had not suffered a deprivation of his liberty. That may be a correct characterisation of the decision in HM v Switzerland (2002) 38 EHRR 314. It is not, as I have explained, a correct reading of Secretary of State for the Home Department v Mental Health Review Tribunal (PH, interested party) [2002] EWCA Civ 1868.

Ms Richards submits that DE has been and is being deprived of his liberty: the “concrete situation” is that DE was not free to leave the X home and is not free to leave the Y home. She says that, although SCC tries to suggest that DE would not have been prevented from leaving had he actually tried to, that was never communicated either to DE or to JE – indeed, the ‘message’ consistently given to them was to precisely the opposite effect – and is simply not supported by the contemporaneous records. She relies upon the whole of the matters which I have set out in paragraphs [90]-[97] above but points in particular to:

Ms Richards points out that although DE has not made any physical effort to leave, he has frequently and consistently stated that he wants to return home to live with his wife. She submits that his overriding desire is to be with his wife. DE’s situation, she says, is very different from that of HM. Unlike HM, DE repeatedly expresses his wish to be living with JE and has made it clear that he is in the Y home “against his will”.

Ms Richards further submits that, although DE has a significant degree of control over his day-to-day activities and has contact with the outside world through JE’s visits and telephone calls, as indeed those from his daughter EW (though, as she points out, his contact with JE appears to be extensively monitored and observed), DE is completely under the control of SCC in relation to the essential matters as to where he can live, whether he can leave and whether he can be with JE. Fundamentally, DE has been deprived of his liberty to be at home with JE, thereby frustrating his frequently repeated wishes.

Moreover, as she points out, this regime has been of significant duration: these restrictions on DE’s liberty are not temporary in nature but have been ongoing since September 2005, are still continuing and are intended to be indefinite.

Ms Richards acknowledges that SCC’s intentions are benign and that SCC has acted in what it considers to be DE’s best interests and for the purpose of protecting those interests. But, she submits, purpose, even if relevant, is but one factor. It is certainly not decisive and must not, she says, be accorded too much weight.

Mr Bowen adopts Ms Richards’s submissions. He adds these two submissions, by reference to his formulation of principle:

In my judgment, and very much for the reasons given by Ms Richards and Mr Bowen, DE was “deprived of his liberty” while in the X home and has been and is being “deprived of his liberty” in the Y home.

I can go much of the way Ms Morris would have me go. I accept that DE had within the X home, and has had and has within the Y home, a very substantial degree of freedom, just as he had and has a very substantial degree of contact with the outside world. And I can agree with Ms Morris that DE has never been subjected to the same invasive degree of control within the X home and the Y home, let alone the same complete and effective control within the two homes, to which HL (HL v United Kingdom (2004) 40 EHRR 761) was apparently subjected. For example, as she correctly points out, DE has never been subjected to either physical or chemical restraint within either institution.

But the crucial question in this case, as it seems to me, 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 in this case, in my judgment, is whether DE was deprived of his liberty to leave the X home and whether DE has been and is deprived of his liberty to leave the Y home. And when I refer to leaving the X home and the Y home, I do not mean leaving for the purpose of some trip or outing approved by SCC or by those managing the institution; I mean leaving 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 JE.

After all, and this is the point made by Judge Loucaides in the passage in his dissenting opinion in HM v Switzerland (2002) 38 EHRR 314 which I set out in paragraph [44] above, prisoners detained in an open prison may be subject to virtually no physical restraint within the prison, may be allowed to have extensive social and other contact with the outside world and may even be allowed to leave the prison from time to time, yet they are indubitably “deprived of their liberty.” And the reason why this is so is because, as Judge Loucaides put it, they “are not permitted to leave the place where they are detained and go anywhere they like and at any time they want.” And, as Ashingdane v United Kingdom (1985) 7 EHRR 528 demonstrates, and as was recognised both by Judge Loucaides in his dissenting opinion in HM v Switzerland (2002) 38 EHRR 314 (see paragraph [44] above) and by the Strasbourg court in HL v United Kingdom (2004) 40 EHRR 761 at para [92] (see paragraph [57] above), exactly the same point can be made in relation to persons in mental and other similar institutions.

I agree, therefore, with Mr Bowen and Ms Richards when they identify the crucial issue here as being, just as it was in HL v United Kingdom (2004) 40 EHRR 761, whether DE was or was not, is or is not, ‘free to leave’. And I agree with them when they submit that DE was not and is not ‘free to leave’, and was and is, in that sense, completely under the control of SCC, because, as Ms Richards put it, it was and is SCC who decides the essential matters of where DE can live, whether he can leave and whether he can be with JE.

There is one other point to be made before I return to examine the evidence. A person can be “deprived of his liberty”, indeed detained in the fullest and most complete sense of the word, even though his departure from the place of detention is not prevented by a locked door or by any other physical barrier. After all, a Category A prisoner detained in a maximum-security closed prison and a Category C prisoner detained in an open prison are both equally “deprived of their liberty”, even though there is nothing more keeping the Category C prisoner in than a rule that he must not pass beyond a line drawn on a plan, a notice attached to a tree warning him that he must go no further and the threat of recapture if he leaves without permission. So the fact that there is no perimeter security at the Y home, and the fact that DE can walk out at any time merely by operating a key-pad (assuming he is able to do so) is not determinative of the question whether he is nonetheless being “deprived of his liberty.” As the Strasbourg court made clear in HL v United Kingdom (2004) 40 EHRR 761 at para [92], whether a patient is kept in ‘locked’ or ‘open’ conditions is not determinative.

There are two aspects of the evidence which are particularly illuminating of what in my judgment was and is the true situation.

The first relates to SCC’s understanding of the legal position. It is clear from a number of contemporaneous references (see paragraph [92] above) that SCC understood DE’s placement, initially at the X home and subsequently at the Y home, to be “under” or “on the basis of” the common law doctrine of necessity. Moreover, it is also apparent that SCC understood the common law doctrine of necessity as being something that “could be used to keep [DE] at [the X home]” and something indeed that “will be used to maintain [DE]’s placement” there (paragraph [92(iii)]), as being something that “could be used to prevent” JE removing DE (paragraphs [92(iii)] and [92(iv)]), and as something meaning that DE’s “wishes can be overridden in his best interests” (paragraph [97(v)]).

The other aspect relates to the instructions given by SCC to the staff at both the X home and the Y home and to what was being said by SCC and its staff not merely to DE and JE but also to others. I have in mind, in particular, the following matters, which for convenience I list in chronological order:

In addition to this there is the important evidence of JE and of Ms Soper:

Finally there is Ms Morris’s acceptance that SCC “will not agree” to DE returning to live or visit with JE (paragraph [104(iv)]) and that, if JE were to persist in an attempt to remove DE, SCC would contact the police (paragraph [104(vi)]).

In the light of this substantial and consistent volume of material it seems to me that DE quite plainly was not ‘free to leave’ the X home and has not been and is not ‘free to leave’ the Y home, with the consequence, in my judgment, that he has been and continues to be “deprived of his liberty” – a state of affairs that has continued since 4 September 2005 and is still continuing. The fact is that DE has repeatedly expressed his wish to be living at home with JE and has made it clear that he is in the Y home, as previously the X home, “against his will.” It is suggested by SCC that he would not have been prevented from leaving had he actually tried to. That, in my judgment, simply will not wash. In the first place, the assertion simply does not accord with the historical reality as noted in contemporaneous records. Secondly, and in any event, as Ms Richards points out, this was never communicated to either DE or JE. On the contrary, the ‘message’ consistently given to them was understood by them, and reasonably and unsurprisingly understood by them, as being to precisely the opposite effect: the Police would be called in order to foil any attempt to take DE back home.

Ms Morris takes a number of points in her ultimately vain attempt to escape this conclusion. She suggests that DE’s repeated statements of his wishes were, in significant measure, more the product of JE’s urgings rather than of his own true wishes and feelings. Even if that were so, I do not see how it would affect the outcome, for even if DE had capacity (which is extremely doubtful) there could, in the light of what he was undoubtedly saying, be no sensible basis for any inference that he was consenting to his confinement. And in any event, Dr Jefferys expressed the view (see paragraph [91] above) that DE’s stated wish to be with JE “appears to be deeply held and consistent.” Secondly, she submits that SCC has no objection in principle to DE living elsewhere than at the Y home, for instance either with his daughter or in some other residential establishment. That may be, but it wholly fails to meet the charge that 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 JE. And that, after all, as Ms Morris herself has to concede, is the very thing that SCC “will not agree” (see paragraph [104(iv)] above). Thirdly, she submits that the Police would not in fact have had any power to prevent DE being removed, unless, for example there was a breach of the peace or some criminal offence being committed. This, I have to say, is little better than a piece of legal sophistry, and in large measure ex post facto legal sophistry at that. It is quite plain that SCC’s purpose in repeatedly making it clear (both to the institutions and to JE) that the Police would and should be called was to prevent DE being removed and, as it was explained on 14 December 2005 (see paragraph [97(i)] above), to facilitate his being returned if he was in fact removed. That, as I have already said, was how JE reasonably and unsurprisingly understood what she was being told by SCC. These threats, whether or not they were as devoid of legal content as SCC would now have us believe, were intended to achieve and, as it seems to me, did achieve, the desired objective of preventing DE’s removal first from the X home and then from the Y home. A person can be as effectively “deprived of his liberty” by the misuse or misrepresentation of even non-existent authority as by locked doors and physical barriers. In my judgment, none of Ms Morris’s points has any substance.

Just as HL was, in the view of the Strasbourg court, deprived of his liberty because (see HL v United Kingdom (2004) 40 EHRR 761 at para [91] quoted at paragraph [57] above) he “would only be released from the hospital to the care of Mr and Mrs E as and when [the] professionals considered it appropriate”, and because, had he tried to leave he would have been prevented from doing so, so in very much the same way DE, in my judgment, has been and is being deprived of his liberty. The simple reality is that DE will be permitted to leave the institution in which SCC has placed him and be released to the care of JE only as and when – if ever; probably never – SCC considers it appropriate. SCC’s motives may be of the purest, but in my judgment, SCC has been and is continuing to deprive DE of his liberty.

Accordingly, and for these reasons, I answer in the affirmative the question which I set out in paragraph [11] above. In my judgment DE has at all times since 4 September 2005 been and is now being deprived of his liberty by SCC.