A Local Authority v A (A Child)& Anor

These are two linked cases which I heard whilst I was still a puisne judge of the Family Division and a nominated judge of the Court of Protection.

The first case relates to A, a child who was born on 19 June 2001. The other case relates to C, an adult who was born on 17 July 1987 and who lacks capacity. They are not related. Both suffer from Smith Magenis Syndrome. Both live in the area of the same local authority. Both live at home in the devoted and exemplary care of their parents: in A’s case in the care of her mother, B (A’s father does not have parental responsibility); in C’s case in the care of her mother, D, and her father, E.

Although the legal context differs between the two cases, reflecting the different statutory (and, more generally, the different legal) regimes which apply to children and to incapacitated adults, both cases raise essentially the same important issue: Do the circumstances of their domestic care by their families in the family home involve a deprivation of liberty engaging the protection of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms? And what, if any, role does the local authority have in such cases?

Before going any further there are two things I wish to emphasise. As I have said, both A and C live at home in the devoted and exemplary care of their parents. No one has suggested, or could possibly suggest, any criticism of the loving, caring and devoted care they receive at home. No one has suggested, or could possibly suggest, that their domestic regime should be significantly altered, let alone that they should be removed from home. There is, in my judgment, nothing which even begins to suggest any proper basis for compulsory intervention in the lives of these families, whether by the local authority or by the court. The fact is, as Mr Joseph O’Brien put it on behalf of B, but the same in my judgment goes for both these families, that A and C benefit from an excellent level of care from their families in circumstances where the local authority does not suggest, and cannot sensibly suggest, that it, or any other public authority, could do any better. That is the first thing, and it requires to be borne firmly in mind throughout.

The other thing is this. As will shortly become apparent, I am concerned at this stage only with the question, as I have said, of whether the circumstances of their domestic care by their families in the family home involve a deprivation of liberty engaging the protection of Article 5. I am not at this stage concerned with the question of whether, if they do, that state of affairs is justifiable in accordance with the Convention and in law. But everything I have read and heard would suggest that, realistically, there could be only one answer to that question: that this deprivation of liberty (if that is what it is – in fact, as will appear, I am quite satisfied that it is not) is quite plainly in the best interests of both A and C and justifiable in accordance with the Convention and in law.

In my judgment, as I shall explain in due course, these proceedings were properly brought. But they have now achieved their purpose. And I am quite satisfied that there is no need for the court to be any further involved in any aspect of the family life of either of these two families.

Smith Magenis Syndrome is a rare genetic disorder that has physical, medical and neuropsychiatric manifestations. It is described by one of the witnesses, Dr Ahmad Khouja, a Consultant in Psychiatry of Learning Disability, who comments:

“The features of the disorder (which are displayed by C) include the following behaviour problems: self injurious behaviour, physical and verbal aggression, temper tantrums, destructive behaviour, hyperactivity, restlessness, excitability, distractibility and severe sleep disturbances, which include frequent and prolonged night waking and early morning waking.”

He elaborates this as follows:

“People with Smith Magenis Syndrome have marked difficulties controlling their emotions. Behaviours include frequent temper tantrums and outbursts, aggression, anxiety, impulsiveness and difficulty paying attention. These can be short lived but extremely intense at the time. During such aggression, people can get seriously assaulted and objects thrown and broken. People with Smith Magenis Syndrome appear to have very little control over their aggression at the time, but are remorseful after the event. These features have been present in C from an early age.

Self-injurious behaviours are universal and typically include hand-biting, self pinching/scratching and picking at sores, hitting the head or body, picking skin around the fingernails and tearing or pulling at the nails. The self injury is often a response to frustration or anger and can be extreme, possibly due to the decreased sensation in the extremities and relative insensibility to pain that is a characteristic of affected individuals. Boredom or habit may be other reasons for self- injurious behaviours. C displays self-harming behaviours in the form of nail pulling, wound picking and head-banging …

There are high rates of autism-like behaviours in Smith Magenis Syndrome such as stereotypic behaviours, a need for ‘sameness’ and difficulty adjusting to a new routine. People with Smith Magenis Syndrome are less impaired in their communicative abilities and sociability than one might expect from purely autistic children.

Severe sleep disturbance is a hallmark of the syndrome and has been reported to be near universal. The problems described include difficulties falling asleep, shortened sleep cycles, frequent and prolonged night awakenings, early morning waking, excessive daytime sleepiness and daytime napping. Evidence suggests that there is an underlying problem in the biological clock in the syndrome. C displays all the characteristic features of sleep disturbance seen in Smith Magenis Syndrome.

People with Smith Magenis Syndrome are frequently described as loving and caring, eager to please and with a good sense of humour. They like adult attention and enjoy interacting with adults, though the desire for individual attention from adults may be intense. Many also love music. They react well to consistency, structure and routine. These characteristics also describe C.”

There is an illuminating account in one of her statements by C’s social worker, KM:

“This is a rare condition associated with developmental delay, learning disabilities, behavioural difficulties and disturbed sleep patterns and is caused by a small deletion (microdeletion) on Chromosome 17. The most distinctive features of Smith Magenis Syndrome are the behavioural problems. These include self-injurious behaviour such as hand biting, self picking or scratching, picking at sores, hitting the head or body, tearing or picking fingernails or the skin round the nails, physical and verbal aggression, frequent temper tantrums, destructive behaviour, hyperactivity, restlessness, excitability, distractibility, removal of clothes and severe sleep disturbances including difficulty falling asleep, shortened sleep cycles, frequent and prolonged night waking and early morning waking. Autistic type behaviours such as resistance to change, repetitive questioning and pre-occupation with particular topics are also common.”

These accounts suffice for present purposes to identify the behavioural problems which, in each case, underlie the regime which B, in the case of A, and D and E, in the case of C, have devised for their daughter’s sleeping arrangements.

A lives at home with her mother, B, her mother’s partner and a number of half-siblings. The written evidence (see below) gives me a very full, illuminating and insightful account of A’s life both at home and at school. I have, of course, borne it all very much in mind, but there is no reason why these intensely private and intimate matters should be shared, even anonymously, with the wider world. Reference to a few salient facts will enable anyone reading this judgment to understand how the issues which I have to decide arise and the factual matrix with which I am concerned.

I can best set the scene by quoting a few passages from one of the statements by A’s social worker, KS:

“A is a very vulnerable little girl who needs ongoing monitoring and support.

To ensure that A does not leave the family home the external doors are kept locked at all times and keys hidden or with her mother.

At night A would leave her bedroom and put herself at risk. She has in the past turned on taps in the bathroom, eaten soap, turned on the electric oven, eaten frozen food and tried to get out of the house via the garage door. A is a very determined little girl who does not have any insight into dangerous situations and will persevere at risk to herself and the household …

Safety gates at the top of the stairs or on bedroom door are no barriers to A, as she will either climb over them. She is also able to open them. Safety gates do not provide any barrier to A and could also pose a danger if she tried to climb over the gate on the stairs.

Given A’s sleep pattern it is not practical for someone to sit with her until she falls asleep, this would necessitate someone remaining with her all through the night.

Windows are fitted with locks, keys have been removed and kept with mother to ensure that A does not open the windows. The bedroom window has double glazing, although this is safer there is always a risk of this being broken. Items that could be used to break the window have been removed from the bedroom.

A combination of door sensors has limitations during the night. Response from parents could not be instantaneous and therefore would put A at risk.

The only way the family are at present able to keep A safe during the night is to keep her door locked. They do check on her regularly and A will shout if she wants to come out of her bedroom, however this is said to be rare. Most mornings A is ready to come out of her room, however she occasionally indicates that she wants to remain her room for a while longer. It is reported that A does not become distressed with regard to her bedroom door being locked.

If A shouts to them during the night her shouts will be responded to and they will go to ensure that she is alright.

Parents have reduced the risk of harm during the night by removing objects which would be a danger to A, however all risks cannot be alleviated in the normal way.

The key to the door is kept with the mother at all times.”

I should add that A’s bedtime is around 7.30pm.

Dr Lisa Rippon, a Consultant Developmental Psychiatrist for Children and Adolescents with a Learning Disability, describes in her report dated 11 May 2009 what she was told by A’s mother, B, during her interview with her:

“B told me that A requires constant supervision at home. She describes that she is incredibly active, has no concentration, limited attention span, and no concept of danger. B describes A as being very clumsy and she will frequently bump into things. She is very active, will not sit down and is always ‘on the go’. B describes A charging around the house with no concept of danger …

B told me the most difficult time of the day is during the night. At the most, A sleeps for four hours in total, but this tends to occur in 30 minute chunks. B places A in her bedroom and locks the door. If the door is not locked A will frequently leave her bedroom and at these times can put herself and others at risk. During the night, A is at risk of falling down the stairs. In the past, she has gone downstairs and eaten food from the freezer. B reports that she has found A with her head in the oven and there have been times when there have been concerns that A could be at risk of starting a fire in the family home during the night. On one occasion, A placed a tub of salt in the microwave. She has also been observed lifting her baby brother out of his cot and thereby putting him at risk. B is also concerned that, should A leave her bedroom during the night, she could vacate the home and, as she has a history of approaching non-familiar adults, would be at risk.

At interview B told me that, during the night, she will frequently check that her daughter is okay in her bedroom and A will knock on the door should she want to come out. B told me that there are many times when A wants to be left alone in her room. B may open the door to let her daughter out of the bedroom, but A will refuse to leave and will slam the door in B’s face, indicating that she is not ready to come out.”

Dr Rippon also interviewed A. She reports:

“A’s level of understanding seems, at best, to be at a three year level. From information I have available to me, I believe that A knows her bedroom door is locked. However, she does not have any insight to why this happens or the risk that her behaviour puts herself or other people in.

From my interview with A, I could establish that, if she wants to get out of her room, she knows she should knock on her door.

In relation to A’s attitude to being locked in her bedroom, her behaviour indicates that she is not unhappy with this. It appears that she does not protest when she is going to bed at night and A told me that she plays, dances and goes on the slide when she is in her bedroom, giving no indication that she is unhappy during the night.

A told me that she could knock on the door when she wants to get out. In addition B told me there are times when A actively refuses to leave her bedroom, indicating to me that she does not find being in her bedroom unpleasant.

A’s account of her night-time routine is very limited. As noted, she told me she goes into her room and, if she wants to get out, she will knock on her door. Through the course of my interview with A, I could find no evidence that she was distressed at night or that she dislikes being in her bedroom, even though the door in locked.

I have been asked to comment on A’s attitude towards her family and home.

From all the information I have available to me and A’s presentation at interview, it is obvious that she has good relationships with all her family and presented as a happy little girl.”

Asked to report on the alternatives to locking A in her bedroom at night, Dr Rippon said:

“It is my view that having a carer in the room would not be appropriate, as it would be over-stimulating for A and would result in a deterioration in her sleep pattern.

It is my view therefore that the only way of keeping A safe at night is to confine her in one space within her home. This could be done in one of two ways. Either continue with the current arrangements of locking A in her bedroom and making modifications to make the room as safe as possible. A does not resist this, she appears to enjoy being in her bedroom at night and has access to her toys and slide. The disadvantages to this option would be that, as A grows and increases in size, then opportunities to hurt herself from objects in her bedroom may increase. However, if regular assessment could be undertaken by an occupational therapist and necessary alterations undertaken, then these risks could be minimised.

In my view, the other alternative would be the provision of a safe space, which provides an alternative to wall padding and is best described as a ‘room within a room’. Safe spaces are made with industrial strength PVC walls, which are positioned away from the walls of a room, the PVC is pulled taut on a steel frame and flexes to absorb impact. The flexible walls and thick soft padded floor reduce the risk of the person inside being able to harm themselves on walls, floors and other hard surfaces. A safe space has the advantages of protecting A from objects in her room, but she would still need to be confined in one space.

At the moment I am unable to predict how A would actually respond to being placed in such an environment, where she does not have access to some of the toys which she likes, such as the slide. It would also provide A with a much reduced area to move around in at night and may result in increased frustration and distress.

At the present time, given the uncertainty as to how A would react to being put in a safe space, it is my view that, on balance, being locked in her bedroom is the more appropriate means of keeping her safe during the night.”

I have no hesitation in accepting Dr Rippon’s analysis and conclusions.

The report of A’s guardian ad litem, Judith Bennett-Hernandez from the Cafcass High Court team, dated 15 June 2009 was to much the same effect. She tells me what she was told by B:

“The mother said she felt she has no choice but to lock A in her own bedroom. A posed a risk to herself and others. She gave me the following examples of what happened when A is not contained in the bedroom. A:

• caused a fire by placing a tub of salt in the microwave. It was the smell of the burning that woke the mother;

• emptied the freezer and was found eating frozen food;

• had been found with knives/scissors which she used to open packets of food;

• emptied the washer/dryer machine and then attempted to enter it;

• turned on the bathroom taps and left them running;

• attempted on several occasions to leave the house through the front door/windows of the house;

• entered her mothers room and picked her baby brother out of his cot.

The mother said that she accepted that the situation was not ideal but because of the perceived danger to A and the rest of the household, the risk of not locking A in her room was greater than locking her in …

The mother told me that A goes to bed between 7.30-8pm. She sleeps between 2-4 hours. When A was awake the mother would hear her banging, shouting and when she was momentarily quiet that would mean A was seated on the windowsill. The mother said she checks on A at least two-three times during the night.”

She comments that from what B was saying “much thought and consideration has been given to the dilemma of locking A into the bedroom and the alternative options.”

Her conclusions and recommendations are clear and I accept them:

“Having the opportunity to meet A and the family on two occasions and gain a better understanding of the issues as experienced by the mother and family on a daily basis, I hold the view that the risk of A suffering harm, if her room door was left unlocked, is greater than when it is locked.

Based on what I have listed [above], as told by the mother and confirmed by social services, I believe it would be negligent not to take safeguarding measures. It is to the mother’s credit that she has investigated alternate options to protect A before resorting to locking A in the bedroom.

It is my assessment that the mother has the capacity to meet A’s physical and emotional needs. She has clearly given a lot of thought to how her actions impact on A’s welfare. I have no doubt of the mother’s love for A and that her primary concern is about the risk A poses to herself and the rest of the family. I believe the mother would find it difficult to forgive herself if anything happened to A because she failed to act or protect …

I think it will be helpful for the court to make a declaration on the issues concerning A’s human rights, so that there will be clarity between the mother and the local authority concerning the steps that can be lawfully taken within the home to protect A from herself. Beyond that I do not see any welfare grounds requiring an order to be made, and I certainly do not see any need for the local authority to have either a care, or supervision order in respect of A …

It is my view that in this case the actions of the mother are necessary and unavoidable. Her actions are not borne out of selfish motivation or maliciousness, but because she genuinely, and rightly, believes A would harm herself and pose a risk to the rest of the household if left in an unlocked room and unsupervised during the night. This point is echoed in Dr Rippon’s first report …

On that basis, and on purely welfare grounds, my observation would be that whatever deprivation of liberty there may be is more than counter-balanced by the imperative need to protect A from her own actions. And that the mother’s actions in securing her in her room at night enable the family to function in what is an extremely difficult and demanding situation. Were it not for these measures, I would have doubts whether the family would be able to function at all. And so, it seems to me that the measures actually contribute to A’s enjoyment of family life, as witnessed by me on my two visits to the home …

It was not possible for me to see the ‘safe space bed’ however; I do hold reservations about the use of it. A would be able to see out of it but I believe that she could feel more enclosed than if she were locked in the open space of her room, thereby feeling the true impact of her liberty being restricted. I also, concur with Dr Rippon that the ‘safe space bed’ would limit her access to the toys and slide in her room. The advantages of the ‘safe space bed’ such as protecting A from objects in her room … or walking off the windowsill are lost when considering A’s likely reaction to being confined in a PVC constructed bed …

It is my assessment that the mother’s current practice of locking A in her room is in the best interests of the child and is a significant preventative measure in protecting her from harm. As a result I believe it should be allowed to continue. This would not prevent the mother and the local authority continuing to search for alternative ways to keep A safe, including by agreement, a trial period using the ‘safe space bed’.”

C lives at home with her mother, D, and her father, E. She has no siblings. Again, the written evidence (see below) gives me a very full, illuminating and insightful account of C’s life both at home and at the centre she attends. I have, of course, borne it all very much in mind, but, just as in A’s case, there is no reason why these intensely private and intimate matters should be shared, even anonymously, with the wider world. Reference to a few salient facts will suffice for an understanding of the issues and the factual matrix.

Again, the scene is helpfully set by what C’s social worker, KL, says in one of her statements:

“A feature of Smith Magenis Syndrome is an erratic sleep pattern. As it can take 2 hours for C to go to sleep she is encouraged to go to bed around 9pm-9.30pm. C will then read her magazines and look at her books for about 2 hours. It is likely that C will wake up again after sleeping for a couple of hours and then be awake again for up to 2 hours. This pattern can occur throughout the night.

When awake C would leave her bedroom and go downstairs. Without supervision it is likely that C’s destructive behaviour would result in her destroying furniture and fittings within the home and as a result of this she would be at risk of harming herself as well. C would also empty the contents of the fridge and cupboards and eat copious amounts of food, whether cooked or not. She would also tamper with the electric cooker and other appliances.

In order to prevent this C is locked in her bedroom overnight. Previously there was a lock with a key before the current bolt was fitted. C would kick the door causing the key to fall out with the risk of it becoming lost. No keys are required for the current lock therefore the key can not be lost. Her parents advise that should C shout for them they do go and attend to her immediately. Usually however, they are aware that C is moving around her bedroom but she is not calling out for them nor is there any sign that she is distressed in any way. It appears that C is content to spend time looking at her books until she falls asleep again.”

She outlines the various measure which have been tried down the years to keep C safe and continues:

“Several options have been tried to keep C safe overnight without having to lock her in her bedroom. None of these have been successful. Due to the open plan layout of the home there are no internal doors downstairs which can be locked to prevent C accessing rooms. Once downstairs C has access to kitchen, dining room and living room. As well as the risk of harming herself she would also destroy the fixtures and fittings. There is no cure for C’s condition and therefore these behaviours will continue throughout her life. As the erratic sleep pattern is also part of her condition this will also continue. If C is not locked in her bedroom overnight then her parents would have to be up with her every time she was awake during the night in order to provide constant supervision, as in place during the day. This is not a practical solution as both parents would quickly become exhausted and E has to go out work. They would then struggle with their caring role and it would become increasingly difficult for them to continue caring for C at home. This would not be a good outcome for either them or C. The family have very strong bonds and her parents are committed to providing C with as many positive opportunities as possible.”

She sets out her conclusion in her final statement as follows:

“The current system of locking C in her bedroom appears to be the most appropriate solution to ensure both C and her parents get sufficient sleep. C is generally settled in her room overnight and if she does wake up tends to spend time reading her books until she falls asleep again. Should she shout for attention her parents can easily hear her and get up to attend to her. When C wants to get up in the morning, which can be any time from 5am onwards, her parents get up as well. The bedroom is locked for the shortest possible time and is the least restrictive option to manage the risks.”

Dr Khouja, albeit from a different professional perspective, paints a very similar picture:

“D and E reported that C has had her bedroom locked at night for many years now, and she is very settled with this regime. The sound of the door locking is now a cue for her to settle down and get ready to sleep.

Her parents described and showed me the open plan nature of their home, and it was clear from this that there is no area that could be locked other than the bedroom which would prevent C from accessing the rooms downstairs. They said that any attempt they have made in the past, such as putting up safety gates, have not worked as C can be quite determined to circumvent them, and was described as showing a remarkable degree of strength and persistence at destroying things.

The cupboards in her bedroom are locked so that she does not have access to these books and games except when she needs them. However there are plenty of other games, books and toys in her room on open shelves that she can access at any time. The TV and computer are in a locked unit, and the electrical switches are kept out of the way, because if she had the opportunity, she would turn everything on and play with it throughout the night.

They said that C did have some idea that things are out of the way for a reason, but the situation is now so normal for her, she really does not think about it and is not worried by it. They said that as she has got older, she has got better at only touching her own belongings and not interfering with other people’s. However she still ‘trashes’ her bedroom from time to time, at a frequency of one or two times a week.

There has been no change in her sleep pattern for many years. Some nights she can fall asleep straight away, whereas others she can ‘be quite merrily singing away at 2.00 or 3.00am.’ Her parents often hear her pottering around in her room in the early hours of the morning. C indicates to them if she wants to go out usually by knocking on the bedroom door, which may be because she wants a drink or her continence pad needs changing …

It was their strong opinion that she does not have the capacity to decide whether to have her bedroom door locked or not. They said that if anyone was to ask her the question, she would give them varying responses depending on how it was phrased and to whom she was talking. They described her as ‘answering without meaning’. They said if the door were left open, she would wander around. If the front door were left open, she would wander through the streets in various states of undress including being naked.

They have tried unlocking the door after she falls asleep, but have discovered that this does not work as she often wakes up through the night and is very adept at sneaking past their room and downstairs without them hearing. Therefore they have now adopted a routine whereby they unlock it at 7.00am (later at the weekends) so that when she wakes up she can leave her room when she wants …

C is awake and up at some point nearly every night. Most nights her parents have to go into the room in order to attend to her. She gains their attention by shouting, knocking and banging. She may ask for a drink or her pads to be changed. They said that she always knocks if she wants them for something. Most of the time she does not try the door handle, though can occasionally bang or kick the door. However this is nearly always as part of a temper outburst rather than an attempt to get out, as she is also kicking the walls and the furniture. However the door causes most noise when kicked, and this may be the reason it is preferred.

Her parents felt that C views being in her room at night with a locked door as entirely normal and part of her routine. She does not complain about it, she just merely accepts this is what happens at home.”

Dr Khouja’s analysis of how C feels about her bedroom is illuminating:

“C’s understanding of being locked in her room is restricted to an account of the physical process. When I asked her why, she said it was so she could sleep. She did not equate being locked in her room as being a consequence of her behaviour or management thereof.

She therefore does not understand that she is being locked in her room. She has no awareness of the social context of being locked in her bedroom. She would not appreciate this was in some way unusual, rather she would view it as something that happens when she is at home at night and it is time for bed .

She told me she liked her bedroom, which was full of her personal items and was well appointed given the level of destruction caused by C on a regular basis.

When she showed me round her bedroom it was with a sense of pride. There was no sense of her being upset or distressed by being in her bedroom. This, in my view, would suggest that she does not consider her bedroom in a negative way, or as a place of punishment. Rather the opposite, her view was entirely positive …

I asked what she would do if she wanted her mother or father; she indicated she would knock on the door.”

His conclusions are clear and positive:

“C has an excellent quality of life at home. In a case such as this it is important to view the care package in the round. I am strongly of the opinion that she would not have as good a quality of life in any other setting. The priority therefore has to be to maintain the home situation whilst ensuring that any potential deprivation of liberty is avoided or appropriately safeguarded.

The risks to C of being allowed to wander the house at night unsupervised would be substantial, and could not be justified. There is therefore required a reasonable and proportionate response to lower these risks. In reality, this can only be achieved by one of two means (1) C being contained within a relatively safe area where risks are minimal and/or (2) C is supported at all times in areas of significant risk by a carer (either parental or professional).”

He carefully considers all the various alternatives that have been tried or proposed from time to time before concluding that:

“Having reviewed the case and relevant literature, it is my view that the only two methods that can be reasonable considered in this case are:

(1)

To continue with the status quo and keep C’s bedroom locked, or

(2)

To utilise a night time carer, who will support and safeguard her through the night whenever she gets up.

C’s parents need to be assured that C is safe, and the same time, they need to receive sufficient rest to allow them to continue in their roles. It is not reasonable to consider either parent providing the 1:1 nighttime support without risking a breakdown of the entire care package. It is necessary therefore to have a professional carer.”

He carefully weighs the advantages and disadvantages of each of the two alternatives, keeping C’s bedroom locked or employing a nighttime carer, and concludes that:

“In light of the above analysis, it is my view that for C the advantages of retaining the current system far outweigh the disadvantages. Furthermore, the range of alternatives is realistically limited to just one, the provision of nighttime carers, and the disadvantages of this option outweigh the advantages, principally by virtue of the nature of C’s medical condition.”

He adds these helpful observations:

“The use of the locked door at night has resulted in a reduction in both the likelihood and seriousness of harm. It is of course a decision of the Court of Protection as to whether the response was proportionate. It is the view of this assessor, in the absence of alternatives, that it is not a disproportionate response.

It is the opinion of this assessor that the family have attempted to try a reasonable range of alternatives, but unfortunately without success. The only alternative that could be considered is the use of a nighttime carer for C.

The use of a night time carer is less restrictive than having a physical barrier in place and her parents on hand to tend to her needs and to support her going to other areas within the house. However even with the locked bedroom, C can leave when she wishes, albeit by first having to alert her parents that she wants to get out. This is not fundamentally different to the daytime situation should C wish to go outside; she would indicate to her parents/carer that she wanted to go outside, they would unlock the door and go out with her.

However the clinical situation would be worse with the long-term use of a nighttime carer … due to it interfering with C’s already poor sleep pattern, and ultimately increasing risks associated with C.

If the door was opened but a nighttime carer was present, C would be awake more and would be out of her room more often. A large driver for this would simply be to interact with the carer. The carer would presumably encourage C to return to bed and to sleep rather than promote C getting up and wandering around the house (especially as this would disturb the parents). Almost inevitable therefore C’s carer would act in a sense as a form of ‘barrier’ to C leaving her bedroom, encouraging her to return to bed. Therefore there is still an element of restriction with the use of a carer through the night.”

His overall conclusion is that:

“C has an excellent quality of life considering the nature and degree of her disorder. Having reviewed the care package as a whole, I am of the opinion that it is comprehensive and meets all of C’s needs.

The current strategy of locking C’s bedroom door at night appears to be working well in that risks are managed to a reasonable level. C does not object to the door being locked and is not coming to harm due to the procedure.

The only real alternative is to employ a night time carer. However there are significant disadvantages to this, but principally it could increase C’s overall level of risk as her sleep pattern would be more disturbed using this approach. This would also have implications for her developmental progress and on the long-term ability of her parents to care for her.”

I have no hesitation in accepting Dr Khouja’s analysis and conclusions.

On 11 December 2008, and before any proceedings had been issued, Coleridge J, sitting both as a judge of the Family Division, in relation to A’s case, and as a judge of the Court of Protection, in relation to C’s case, gave certain preliminary directions. In accordance with those directions, C’s case was listed before a District Judge sitting in the Court of Protection on 23 December 2008. The District Judge granted the local authority permission pursuant to section 50(2) of the Mental Capacity Act 2005 to make a personal welfare application in relation to C. In the meantime the local authority had issued its CPR Part 8 Claim form in relation to A on 19 December 2008. The Claim Form and the attached Details of Claim explicitly invoked what was described as “the court’s inherent jurisdiction to grant declaratory relief in respect of children who lack capacity” – capacity here being seemingly used not in the sense of ‘incapacity by reason of non-age’ but rather in the sense of ‘mental incapacity’.

Both matters came before me for directions on 19 February 2009. A was represented by a guardian ad litem from the Cafcass High Court team, Ms Bennett-Hernandez. C was represented by her litigation friend, the Official Solicitor.

It was common ground that C lacked capacity to conduct the litigation and capacity to make decisions as to her health and social care needs, just as it was common ground that A and C each lacked capacity to make decisions about being locked in her bedroom at night. (Indeed, it is plain that they have only very limited understanding of or insight into their disabilities.) I made interim declarations to that effect. I also made interim declarations in each case (they were in identical terms but for ease of reference I quote the declaration relating to A) that:

“It is lawful being in A’s best interests that:

(a)

A remain in the care of B.

(b)

Such steps as are currently being taken to prevent A from causing harm to herself and acting in a destructive and life-threatening manner at night – namely being locked in her bedroom with ongoing risk assessments:

(i)

are reasonably proportionate and

(ii)

to the extent that such acts constitute a deprivation of liberty under Article 5 ECHR, the court authorises the deprivation of liberty until further order.”

I directed that both cases were to be treated as separate but linked cases to run in parallel and to be listed at the same time, but on the basis that there was to be no disclosure of evidence between the cases. I also directed that the matters were to be dealt with in the first instance by way of a preliminary issue, which was defined at that stage as being whether in all the circumstances locking A and C in their bedrooms amounted to a deprivation of liberty under Article 5.

On 23 April 2009 the Equality and Human Rights Commission applied to intervene in both cases. At a further directions hearing on 28 April 2009 I ordered that the Commission be joined as an intervener in each case. Its assistance has turned out to be invaluable. I continued the interim declarations and varied the terms of the preliminary issue to read in each case (again I quote from the order relating to A):

“Whether in all the circumstances of the case A is being deprived of her liberty within the meaning of Article 5(1), namely whether: (a) the objective element is satisfied, ie A is being confined in a particular restrictive space for a not negligible length of time and having regard to the type, duration, effects and manner of implementation of the restrictions, in particular that they are imposed by A’s parents in the family home at night for the protection of A’s health and welfare (and considering, in particular, the role of parental authority in the light of Neilsen v Denmark) (Footnote: ¹); (b) the subjective element is satisfied, in that A has not validly consented to the confinement in question; and (c) the deprivation of liberty is one for which the State is responsible, having regard (among others) to the fact (i) A is being confined in her own bedroom by her parents and (ii) the local authority are actively involved in A’s care in the form of providing care services.”

At a final directions hearing on 2 July 2009 I continued the interim declarations and gave various directions, which there is no need for me to set out, designed to ensure that all the matters which might require determination were considered before the hearing and that at the hearing I would have all the materials necessary to enable me to decide the preliminary issue.

I should add that it was known at that stage that in May 2009 Parker J had heard a case which, amongst other issues with which I am not concerned, raised very similar questions in relation to Article 5, a fact referred to in directions I gave which were included in the orders I made on 2 July 2009. In the event, the delivery of Parker J’s judgment was much delayed, not being handed down until 15 April 2010: Re MIG and MEG [2010] EWHC 785 (Fam).

The preliminary issue came on for hearing before me on 28 July 2009. The local authority was represented by Mr Robert Sherman and Ms Paula Rhone-Adrien, A by Ms Susan Freeborn, B by Mr Joseph O’Brien, C by Ms Alison Ball QC and Ms Amy Street and the Commission by Mr Paul Bowen. D and E were neither present nor represented. That, I emphasise, was not due to any lack of interest or commitment on their part. Quite the contrary. The hearing was spread over three days. At the end of the hearing on 31 July 2009 I reserved judgment, which I now hand down.

I much regret the delay in doing so. Much of the judgment was in fact prepared in August 2009 but further work on it was delayed by my new commitments, which had begun the day before the hearing ended and which in the event and partly for unforeseen reasons proved to be more onerous than I had initially imagined. Moreover, there seemed to be real advantage in awaiting Parker J’s judgment, not least in circumstances where, as I have already pointed out, there was no question of any alteration in either A’s or C’s domestic circumstances. And, as it happens, the delay has meant that I have also had the opportunity of considering Baker J’s judgment in G v E and others [2010] EWHC 621 (Fam), handed down on 26 March 2010. All that said, I am, nonetheless, very sorry that this judgment should have been delayed for much longer than I would have wished.

I heard no oral evidence, most of the hearing being taken up with submissions on matters of law. But I had before me important written evidence:

I have, of course, had all this evidence very much in mind. To the extent that it is necessary or appropriate to do so I have already referred to this evidence so far as it bears upon A’s and C’s circumstances.

I should, however, add some extracts from Mr Wadham’s statement explaining the more general concerns of the Commission:

“In 2007 the Hansel Trust published a research document entitled “Sleep? What’s that?” which looked specifically at such issues …

The Hansel Trust is an independent voluntary organisation which works to promote support for families with disabilities. In this particular survey of parents and/or carers with severely disabled children they found that … 38% of children with sleep problems need containing …

The report of the Hansel Trust indicates that sleep problems such as those set out in facts of these proceedings are by no means exceptional within families caring for a disabled child. The Hansel Trust has estimated that as many as 246,000 families in England and Wales are potentially experiencing sleep problems. If 38% of these families are resorting to containment the question of deprivation of liberty is likely to be an issue for many local authorities.

A 2001 report by MENCAP entitled “No Ordinary Life” … found that 60% of people with a severe and profound learning disability live at home with their parents …

There therefore appears to be a significant number of incapacitated individuals who are being cared for within private family homes under the supervision of local authorities. Whereas there are now procedures in place regarding the deprivation of liberty of incapacitated individuals under the Deprivation of Liberty Safeguards these do not apply to private homes or to children under 18 years of age.

Although it is clear in these proceedings that the individuals involved are well cared for within a loving family home, the Commission is concerned at the potential for abuse where there is no external scrutiny of the treatment of vulnerable are adults within private homes. This is particularly the case when the person being locked up is incapable of taking personal responsibility, and the person with responsibility is making the decision as to the manner of restraint. The Commission can see no justification as to why such individuals should not be considered as being at risk of being deprived of their liberty and be excluded from the safeguard procedures which apply for those being locked in rooms in accommodation elsewhere. Nor should children have less protection than adults.”

He summarised the Commission’s stance as follows:

“The Commission does not seek to adopt a position in line with one or other of the parties in these proceedings but wishes to ensure that a system exists to protect vulnerable individuals, particularly in circumstances where they may have difficulty in exercising their rights.

The Commission is therefore of the view that where a local authority is aware, or ought to be aware, that there is a real risk of a deprivation of liberty the local authority must carry out an assessment to ascertain if a deprivation of liberty is taking place. The assessment process should include the appointment of an advocate for the person whose liberty is being restricted.

Should the local authority and advocate agree that that the restriction is proportionate then there will be no deprivation of liberty. If the local authority and/or the advocate do not find the restriction is proportionate then the local authority must apply to the Court for a ruling on the lawfulness of the restriction.

The Commission is of the view that such a procedure is not only required by law, but is also fair to the parents/carers and the local authority. Most importantly it offers protection to a potentially large number of vulnerable children and adults.”

Those contentions were, as we will see, elaborated by Mr Bowen in the course of his very helpful submissions.

Article 5 provides so far as material as follows:

“1

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(e)

the lawful detention … of persons of unsound mind …

4

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5

Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

It was correctly common ground before me that in determining whether there is a ‘deprivation of liberty’ within the meaning of and engaging the protection of Article 5(1) three conditions must be satisfied (see Storck v Germany (2005) 43 EHRR 96 (Footnote: ²) at paras [74] and [89] and JE v DE (By his Litigation Friend the Official Solicitor), Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, at para [77]; see also now G v E and others [2010] EWHC 621 (Fam) at para [77] and Re MIG and MEG [2010] EWHC 785 (Fam) at para [151]):

It will be convenient to deal first with the third of these requirements. I turn therefore to consider the nature and the legal basis of the local authority’s involvement with A and C, first as a matter of domestic law and then in the context of the Convention, as a prelude to considering whether, if there is any deprivation of liberty here, it is imputable to the State in such a way as to make the State responsible.

Mr Sherman, for whose assistance I am most grateful, helpfully put before me an analysis of the position of a local authority in a case such as this which in large measure he promoted as devil’s advocate to ensure that I had full adversarial argument on the point. I stress this because it should not be assumed that the position he sets out in fact represents the position, let alone the views and assumptions, of the local authority with which I am here involved. So the criticisms of that position which I voice are not to be understood as directed in any way at the local authority in this case which, to repeat, supports both A and C in their placements, does not criticise the devoted and exemplary care they receive from their parents and, as I have already acknowledged, acted properly in bringing these proceedings. Nor, of course, is any of my criticism directed at Mr Sherman, whose submissions, though in no way reflective of the views of this local authority are, as experience unhappily indicates, a fair reflection and summary of views and attitudes shared by too many other local authorities. In articulating his submissions as devil’s advocate he has performed a most valuable service.

It is suggested that in a case such as this a local authority is not merely “involved” with people in the situation of A and C and their families but that it may also have “complete and effective control … through its assessments and care plans”, given that the care plans deal with important aspects of their lives, their care, movement and, in C’s case, social contacts. It needs to be said in the plainest possible terms that this suggestion, however formulated – and worryingly some local authorities seem almost to assume and take it for granted – is simply wrong in law. A local authority does not exercise “control”, it lacks the legal power to exercise control, over people in the situation of A or C or their carers.

Moreover, the assertion or assumption, however formulated, betrays a fundamental misunderstanding of the nature of the relationship between a local authority and those, like A and C and their carers, who it is tasked to support – a fundamental misunderstanding of the relationship between the State and the citizen. People in the situation of A and C, together with their carers, look to the State – to a local authority – for the support, the assistance and the provision of the services to which the law, giving effect to the underlying principles of the Welfare State, entitles them. They do not seek to be “controlled” by the State or by the local authority. And it is not for the State in the guise of a local authority to seek to exercise such control. The State, the local authority, is the servant of those in need of its support and assistance, not their master. As Ms Ball put it on behalf of the Official Solicitor in relation to someone in C’s position, and in my judgment the same applies to someone like A, while the local authority performs important monitoring and safeguarding roles, its major function in relation to C and others like her is to assess needs and provide services. I agree.

This attitude is perhaps best exemplified by the proposition that “in the event that the parents were to disagree with the decisions of the local authority (which will always be based upon the opinion of relevant professionals) it would seek to enforce its decisions through appropriate proceedings if necessary” (emphasis added). This approach, which to repeat is not the approach of the local authority in this case, though reflecting what I have come across elsewhere, reflects an attitude of mind which is not merely unsound in law but hardly best calculated to encourage proper effect being given to a local authority’s procedural obligations under Article 8 of the Convention (as to which see, for example, Re G (Care: Challenge to Local Authority’s Decision) [2003] EWHC 551 (Fam), [2003] 2 FLR 42, and G v E and others [2010] EWHC 621 (Fam) at para [88]). Moreover, it is likely to be nothing but counter-productive when it comes to a local authority ‘working together’, as it must, with family carers. ‘Working together’ involves something more – much more – than merely requiring carers to agree with a local authority’s ‘decision’ even if, let alone just because, it may be backed by professional opinion. As Ms Ball comments, with what might be thought studied moderation, the use of the word “enforce” may belie an overstated understanding of the degree of control which the local authority has in situations such as this.

I do not, I repeat, attribute any of this to the local authority in the present case, but the submissions which Mr Sherman has so helpfully put before me as devil’s advocate do faithfully summarise an attitude, a mindset, a ‘culture’ which one comes across too frequently elsewhere and which therefore merits more detailed examination than would otherwise be necessary.

A striking example can be found in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, at paras [115]-[120] (see further below). More recently one has found, too frequently for comfort, examples of the same mindset – the same erroneous beliefs by local authorities – in the context of the removal of incapacitated adults from the care of their relatives into residential accommodation, without the sanction of the court and, therefore, without any legal authority. In one such case which came to my attention not very long ago, a local authority had behaved so high-handedly that another judge of the Family Division characterised its conduct as tantamount almost to kidnapping. In another such case which came before me the local authority did not get round to issuing proceedings until more than six months after it had intervened. Most recently of all there is G v E and others [2010] EWHC 621 (Fam), where Baker J was extremely critical of a local authority which had removed an incapacitated adult, from a placement where he had been for many years, in circumstances breaching his rights under both Article 8 and Article 5.

No doubt the local authorities involved in these cases were acting in what they conceived to be – and what may in fact have been – the best interests of the person, the human being, involved. But that is not the point. Good intentions may mitigate but even the best of intentions cannot of themselves justify such behaviour – justify either in law, or by reference to human rights or as a matter of proper public administration. As St Bernard of Clairvaux is reported to have said, “L’enfer est plein de bonnes volontes ou desirs.”

The further elaboration of these points requires that I separately consider the relevant domestic law as it applies to children like A and the different domestic law which applies to incapacitated adults like C before turning to consider the effect of the Human Rights Act 1998 and the Convention

In relation to A the position is clear, largely because the relevant law has been codified in the Children Act 1989. For present purposes the relevant provisions are to be found in Parts III, IV and V of the 1989 Act. A brief and necessarily much abbreviated sketch will suffice.

Part III of the 1989 Act, entitled ‘Local authority support for children and families’, imposes a general duty on local authorities (section 17) to provide “services”, including “assistance”, for children within their area who are “in need” as that expression is defined in section 17(10) and more specific duties (section 22) in relation to “looked after” children as that expression is defined in section 22(1). Part V, entitled ‘Protection of children’, imposes a duty on the local authority (section 47) to investigate if it has “reasonable cause to suspect that a child … is suffering or is likely to suffer, significant harm” as that expression is defined in section 105(1). Section 44 enables a local authority to apply to the Family Proceedings Court in certain circumstances for an emergency protection order. Section 46 enables a constable, without judicial authority, to remove a child in certain circumstances and keep the child in police protection for no more than 72 hours. Part IV, entitled ‘Care and supervision’, enables a local authority to apply to the Family Proceedings Court in certain circumstances for a care order.

What is important to note for present purposes is that a local authority does not acquire parental responsibility for a child (see section 3) unless it has either an emergency protection order (see section 44(4)(c)) or a care order (see section 33(3)(a)). A local authority does not have parental responsibility for a child, like A, who is merely a ‘child in need’ being provided with services and assistance in accordance with section Part III. Nor does a local authority have parental responsibility for a child who is in its voluntary care as a ‘looked after’ child under Part III – that is, a child accommodated by it in accordance with section 20. Indeed, such a child may at any time be removed from the local authority’s accommodation (see section 20(8)), and thus from the local authority’s care, by anyone with parental responsibility.

Equally important is the fact that, unless clothed with the authority of either an emergency protection order or a care order, a local authority has no power to remove a child from its parent: R (G) v Nottingham City Council [2008] EWHC 152 (Admin), [2008] 1 FLR 1660, esp at paras [15]-[17], and R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668. And as pointed out in the first of those cases at para [23], section 3(5) of the 1989 Act (which provides that someone without parental responsibility but who has “care” of a child may “do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare”) cannot avail a local authority which, as in the present case with A, does not have the child in its ‘care’. To repeat, A is, as the local authority’s own documentation explicitly recognises, a “child in need living with her family within the community.”

Let me spell it out. A, as a ‘child in need’ being provided with support and assistance by the local authority in accordance with Part III of the 1989 Act, is not in the care of the local authority. The local authority does not have parental responsibility for her. Indeed, the only person with parental responsibility for A is her mother, B. So it is B, and B alone, who has (and I quote the definition of “parental responsibility” in section 3(1) of the 1989 Act) “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” And the local authority does not have or exercise “control” over A, let alone “complete and effective control”.

In contrast to child care law, adult social care law – an expression which I borrow from the Law Commission’s November 2008 ‘Adult Social Care: A Scoping Report’ – has developed piecemeal since 1948. According to the Scoping Report (para 2.1) it “remains a confusing patchwork of conflicting statutes enacted over a period of 60 years.” It is characterised by the sheer volume of legislation (Appendix A to the Scoping Report lists 34 statutes which deal, to varying degrees, with adult social care), with much overlap and duplication. It is noted for its “baffling” and “tortuous” complexity – requiring “a detailed knowledge of the inter-relationship between the various statutes, secondary legislation and relevant guidance” and for its perpetuation of “outdated concepts”. (I gratefully adopt these observations and much of the language from Chapter 2 of the Scoping Report.) The Scoping Report concluded (para 2.57) that “Adult social care law is in urgent need of reform” and identified (para 5.13) “the general need to establish a coherent and comprehensive legal framework.” The practitioner, whether social worker, legal professional or judge, is driven to agree. (Footnote: ³)

This is not the place to survey this complex and confusing a body of law. It suffices for present purpose merely to sketch out – very briefly – the various sources of local authority competence in this area. (In what follows I confine my attention to the law of England; in some, albeit comparatively minor, respects the position is different in Wales.)

Leaving aside mental health law and the Mental Health Act 1983, which I emphasise have nothing whatever to do with either of the cases with which I am here concerned, it is possible to discern five main sources of local authority competence in this area of the law:

I need not go into any more detail in relation to the first four of these. The essential point for present purposes is that none of these sources of local authority engagement with someone like C confers on the local authority any power to regulate, control, compel, restrain, confine or coerce. They are concerned with the provision of services and support.

The only relevant power conferred on a local authority is under section 47 of the 1948 Act, which enables it to seek an order from a magistrates’ court for the removal of a person from his residence to a hospital or other place for the purpose of securing necessary care and attention – a provision which the Scoping Report suggests (paras 4.298-4.301) is “rarely used”, “regarded as largely obsolete” and not necessarily compatible with Article 5 of the Convention. (Footnote: ⁵)

Section 47 apart, if a local authority seeks to control an incapacitated or vulnerable adult it must enlist the assistance of either the Court of Protection or the High Court: see Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam), [2010] 1 FLR 1373, at paras [21]-[22], and cf Re Z (Local Authority: Duty) [2004] EWHC 2817 (Fam), [2005] 1 FLR 740, at para [19], and E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, at paras [2], [69]. Otherwise it may find itself being sued in tort: see Re S (Vulnerable Adult) [2007] 2 FLR 1095 at para [19]. The Court of Protection has statutory jurisdiction under the Mental Capacity Act 2005 in relation to adults who lack capacity. The High Court has an inherent jurisdiction in relation not merely to adults who lack capacity but also to vulnerable adults: see Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867.

Hedley J’s compelling analysis in Re Z (Local Authority: Duty) [2004] EWHC 2817 (Fam), [2005] 1 FLR 740, at para [19] of a local authority’s duties towards a vulnerable adult seeking assisted suicide is as illuminating for what it does not say as for what it does:

“In my judgment in a case such as this the local authority incurred the following duties:

(i)

to investigate the position of a vulnerable adult to consider what was her true position and intention;

(ii)

to consider whether she was legally competent to make and carry out her decision and intention;

(iii)

to consider whether any other (and if so, what) influence may be operating on her position and intention and to ensure that she has all relevant information and knows all available options;

(iv)

to consider whether she was legally competent to make and carry out her decision and intention; (Footnote: ⁶)

(v)

to consider whether to invoke the inherent jurisdiction of the High Court so that the question of competence could be judicially investigated and determined;

(vi)

in the event of the adult not being competent, to provide all such assistance as may be reasonably required both to determine and give effect to her best interests;

(vii)

in the event of the adult being competent to allow her in any lawful way to give effect to her decision although that should not preclude the giving of advice or assistance in accordance with what are perceived to be her best interests;

(viii)

where there are reasonable grounds to suspect that the commission of a criminal offence may be involved, to draw that to the attention of the police;

(ix)

in very exceptional circumstances, to invoke the jurisdiction of the court under s 222 of the Local Government Act 1972.

My view is that its duties do not extend beyond that.”

The local authority, it is to be noted, may provide advice and assistance, but there is nothing to suggest that it can intervene to regulate or control matters without judicial assistance. I respectfully agree with Hedley J’s analysis.

I should say a little more about the doctrine of necessity. It is, after all, the doctrine of necessity which, in strict legal analysis, provides the legal justification for C’s care by her parents, as explained in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, at paras [20]-[21]. Now in principle there is no reason why a local authority should not, in an appropriate case, have recourse to the doctrine of necessity. But in practice it will not be appropriate for it do so in most cases without having first enlisted the assistance of either the High Court or the Court of Protection.

In the first place it is important to bear in mind the point made by Lord Goff of Chieveley in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at page 76:

“officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act”.

Accordingly, as I remarked in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, at para [23]:

“Where a parent has … willingly shouldered the burden of looking after his mentally incapacitated son and wishes to go on doing so, he does not cease to be an appropriate person to do so merely because his son has now turned 18. Indeed, respect for the realities of the human condition rather than any mere regard for so-called parental right would surely suggest that in such a case, other things being equal, it is precisely the parent who is the ‘more appropriate person’ and not some public authority, however well-intentioned.”

This leads on to the wider point which I explained in Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at paras [115]-[117]:

“[115] … the inherent jurisdiction is animated by the principles expounded by Lord Templeman and Lord Oliver of Aylmerton in In re KD (A Minor) (Ward: Termination of Access) [1988] AC 806, [1988] 2 FLR 139. As I said in Re S, at para [48]:

‘I am not saying that there is in law any presumption that mentally incapacitated adults are better off with their families: often they will be; sometimes they will not be. But respect for our human condition, regard for the realities of our society and the common sense to which Lord Oliver of Aylmerton referred in In re KD …, surely indicate that the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution – however benign and enlightened the institution may be, and however well integrated into the community – and that mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family rather than by the State.’

[116] We have to be conscious of the limited ability of public authorities to improve on nature. We need to be careful not to embark upon ‘social engineering’. And we should not lightly interfere with family life. If the State – typically, as here, in the guise of a local authority – is to say that it is the more appropriate person to look after a mentally incapacitated adult than her own partner or family, it assumes, as it seems to me, the burden – not the legal burden but the practical and evidential burden – of establishing that this is indeed so. And common sense surely indicates that the longer a vulnerable adult’s partner, family or carer have looked after her without the State having perceived the need for its intervention, the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State can do better than the partner, family or carer.

[117] At the end of the day, the simple point, surely, is this: the quality of public care must be at least as good as that from which the child or vulnerable adult has been rescued. Indeed that sets the requirement too low. If the State is to justify removing children from their parents or vulnerable adults from their relatives, partners, friends or carers it can only be on the basis that the State is going to provide a better quality of care than that which they have hitherto been receiving: see Re F; F v Lambeth London Borough Council [2002] 1 FLR 217, at para [43].”

The same approach has been adopted by Sir Mark Potter P in A Local Authority v E [2007] EWHC 2396 (Fam), [2008] 1 FLR 978, at paras [66]-[67], by McFarlane J in LLBC v TG, JG and KR [2007] EWHC 2640 (Fam), [2009] 1 FLR 414, at paras [30], [33], and by Roderic Wood J in Re SK; A London Borough Council v KS and LU [2008] EWHC 636 (Fam), [2008] 2 FLR 720, at para [108]. As McFarlane J put it in LLBC:

“[30] … the fact that the assessment of the option of a family placement was not given priority is a matter of concern. Placement in the family should be at the top of any priority list before alternative non-family placements are considered.

…

[33] Before a local authority seeks to invoke the court’s powers to compel a family to place a relative in a residential care home, the court is entitled to expect that the authority will have made a genuine and reasonable attempt to carry out a full assessment of the capacity of the family to meet the relative’s needs in the community.”

The third point is this. There is no longer any room for doubt that a judge exercising the inherent jurisdiction of the High Court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit. And the High Court’s powers extend to authorising that person’s detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there: see Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, at para [16]. But if a local authority is to resort to such measures it must, unless it can bring itself within the new ‘deprivation of liberty’ amendments to the Mental Capacity Act 2005 effected by the Mental Health Act 2007 (the new sections 4A, 4B and 16A and the new Schedules A1 and 1A), first enlist the assistance of the court and do so before it embarks upon such measures: see Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, at para [23], and A Primary Care Trust and P v AH and A Local Authority [2008] EWHC 1403, [2008] 2 FLR 1196, at paras [29], [41].

Indeed, if there is objection to the steps it is proposing to take, either from the vulnerable adult or from relatives, partners, friends or carers, it seems to me that a local authority needs to enlist the assistance of the court – either the High Court or the Court of Protection – before it embarks upon any attempt to regulate, control, compel, restrain, confine or coerce a vulnerable adult. Only if the person is compliant and there is no objection from those concerned with his welfare is a local authority probably going to be justified in having resort without judicial assistance to the doctrine of necessity. And even where the person appears to be compliant a local authority needs to act with considerable caution before attempting even to regulate or control, let alone to restrain or coerce, a vulnerable adult. One cannot conflate absence of objection with consent. And to equate helpless acquiescence with consent when a person is confronted with the misuse or misrepresentation of non-existent authority by an agent of the State is both unprincipled and, indeed, fraught with potential danger: see R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, at paras [54]-[61], applying in the context of Article 8 of the Convention the principle expounded in relation to Article 5 by the Strasbourg court in HL v United Kingdom (2004) 40 EHRR 761 at para [90] and in Storck v Germany (2005) 43 EHRR 96 at para [75]. “Submission in the face of asserted State authority is not the same as consent”: ibid at para [61]

Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, may serve as a useful illustration. There was no suggestion that what the local authority was doing in that case was to deprive MM of her liberty or that it was seeking to exercise direct physical restraint of the kind that would have brought the principle in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, into play. Yet the local authority’s plans for MM involved a considerable degree of interference in and control of MM’s life (see at paras [142], [162]) and given MM’s clearly articulated views (see at paras [57], [121]) the local authority was, if I may say so, very well advised to enlist the assistance of the court. Indeed, I would go further. I very much doubt that it could have justified its actions merely by reference to the doctrine of necessity.

I have already referred in this context to E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913. The case concerned Pamela, a vulnerable adult who (see para [2]) lived in her own house, supported by a large round-the-clock care support team funded under the community care legislation: the National Assistance Act 1948, the Chronically Sick and Disabled Persons Act 1970 and the National Health Service and Community Care Act 1990. The issue arose because Channel Four wished to broadcast a documentary film about Pamela, a project which was supported by both Pamela and her carer, Judy, but opposed by the Official Solicitor and the local authority. For present purposes what matters is the complaint (see para [115]) about:

“the way in which Channel Four went about the filming, something about which both the local authority, and more particularly the Official Solicitor, make strong complaint. [Counsel] complains that neither the filmmakers nor Judy consulted with the local authority responsible, as she puts it, for Pamela’s care, nor with the Official Solicitor whom Judy knew was representing Pamela in relation to her community care needs. The filmmakers, she says, continued to proceed as though the Official Solicitor was not involved, and as if there was no local authority responsible for Pamela, even after they had made their responsibilities clear. They showed the film to Pamela several times without, as Ms Morris puts it, any consultation with those responsible for her as to the effect the film might have on her. Ms Morris asserts that ‘there is a public interest in filmmakers not going about making films as they did in this case’. She submits that ‘there is a positive obligation on the court under Art 8 not to establish a precedent which allows filmmakers or other media to benefit from commencing filming children or incapable adults without notice to or consultation with those concerned with their care’.”

In support of these submissions I was referred in that case to the judgment of Sir Stephen Brown P in Nottingham City Council v October Films Ltd [1999] 2 FLR 347 at page 357.

This was, if I may say so, a very good example of the kind of local authority ‘mindset’ or ‘culture’ to which I have already referred – and for which there was and is, in my judgment, no legal justification.

I set out my analysis of the true position, an analysis from which I would not in any way resile, in paras [118], [120]:

“ … It is to be noted that, even now, the local authority has still not commenced any proceedings under the inherent jurisdiction with a view to regulating Pamela’s care. The local authority’s formal role in the matter is, essentially, as a provider of community care services to Pamela under the community care legislation (though in saying this I do not overlook its responsibilities to Pamela under the Department of Health’s No Secrets). Prior to the commencement of the present proceedings the Official Solicitor’s only formal role was as litigation friend in relation to Pamela’s community care needs. Judy’s role may be self-appointed but she is not a mere busybody. And as I pointed out during the course of argument, the doctrine of necessity … clothes Judy, unless and until she is replaced, with authority to act in Pamela’s best interests in so far as she lacks the capacity to take her own decisions …

I do not differ from what Sir Stephen Brown P said in Nottingham City Council v October Films Ltd [1999] 2 FLR 347. And a very similar approach might well be called for in a situation where a local authority had assumed some kind of formal responsibility for an incapable adult, for example by taking proceedings under the inherent jurisdiction … (… as the local authority is now planning to do here (Footnote: ⁷)) or under the Mental Health Act 1983 or, when it comes into force, under the Mental Capacity Act 2005. But I do not agree with [counsel] that one can, as it were, extrapolate from that to the more sweeping proposition for which she seems to be contending, that the media, whether the print media or the broadcast media, must first consult with the relevant local authority or with the Official Solicitor before seeking to interview or film a vulnerable adult, or even an adult who is in receipt of care and support under the community care legislation.”

It is elementary that in certain circumstances the Convention imposes on the State not merely negative but also positive obligations. Praying in aid the analysis in Mowbray ‘The Development of Positive Obligations under the European Convention on Human Rights’, Hart 2004, at pages 221 and 223, Mr Bowen submits that rights, if they are to be effective, require the existence of correlative duties on the State: a duty to avoid violating individual rights directly or by its agents; a duty to protect individuals against the violation of their rights; and a duty to aid those whose rights have been violated. Accordingly, and because many, although not all, of the provisions of the Convention provide expressly only for rights that give rise to correlative duties of the first type (so-called ‘negative obligations’), the Strasbourg Court has developed the doctrine of implied ‘positive obligations’ so as to create duties on the State of the second and third kind.

Although he recognises that the Strasbourg Court has said that it does not consider it necessary to develop a general theory of the positive obligations which may flow from the Convention (see Plattform Ärzte für das Leben v Austria (1991) 13 EHRR 204 at para [31]), Mr Bowen points to both scholarly writings and the case-law of the Court as demonstrating that the theoretical basis for the implication of such positive obligations is at least twofold:

Whatever its precise jurisprudential basis, and I find Mr Bowen’s analysis compelling, there is no doubt that the State has positive obligations not merely under Article 8 but also under Article 5.

The Strasbourg court has long recognised that the “respect” for private and family life guaranteed by Article 8 may impose on the State not merely the duty to abstain from inappropriate interference but also, in some cases, certain positive duties. The State may be obliged to take positive action to prevent or stop another individual from interfering with someone’s private life; the State may be under an obligation to intervene in the relationship between purely private individuals in order to prevent ‘private’ violations of rights protected by the Convention: see Botta v Italy (1998) 26 EHRR 241. Thus the State, in the form of the local authority, may not merely have the power but may also be under a positive obligation to intervene, by invoking the assistance of the court, if the Article 8 rights of a child or vulnerable adult are being put at risk: see Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, at paras [32], [39], and Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at para [110].

In the same way the State owes a number of positive obligations under Article 5 to protect individuals from arbitrary interferences with their right to liberty, whether by state agents or by private individuals. As the Strasbourg court said in Storck v Germany (2005) 43 EHRR 96 at para [89], the State may have “positive obligations to protect … against interferences with … liberty carried out by private persons.” Elaborating this, the Court continued at paras [101]-[102] (citations omitted):

“The Court has consistently held that the responsibility of a state is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of non-observance by that state of its obligation under Art.1 to secure those rights and freedoms in its domestic law to everyone within its jurisdiction. Consequently, the Court has expressly found that Art 2, Art 3 and Art 8 of the Convention enjoin the State not only to refrain from an active infringement by its representatives of the rights in question, but also to take appropriate steps to provide protection against an interference with those rights either by state agents or private parties.

Having regard to this, the Court considers that Art 5(1), first sentence, of the Convention must equally be considered as laying down a positive obligation on the state to protect the liberty of its citizens. Any conclusion to the effect that this was not the case would not only be inconsistent with the Court’s case law, notably under Arts 2, 3 and 8 of the Convention. It would, moreover, leave a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is, therefore, obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge.” (Footnote: ⁸)

Again bolstering his submissions by extensive reference to the Strasbourg case-law, Mr Bowen submits that the positive obligations which have been developed under the Convention are of various and overlapping kinds, including the following:

Broadly speaking I accept Mr Bowen’s analysis.

Now plainly, so far as concerns the local authority in the circumstances with which I am here involved, it is the last four of these possible duties with which I am primarily concerned. (As to the first two there is no suggestion, nor in my judgment could there sensibly be any suggestion, that our domestic law or judicial procedures in these matters are not Convention compliant.) (Footnote: ⁹)

How then, in the light of these general principles, does Mr Bowen on behalf of the Commission put its case in relation to what it says are the positive obligations owed in these two cases by the State – by the local authority?

Mr Bowen helpfully breaks the question down into two parts. The first relates to the stance adopted by the local authority in these two cases, in particular in the light of what he says is the current uncertainty as to whether the circumstances here constitute a deprivation of liberty. The other, on the assumption that the present proceedings will dissolve that uncertainty, relates to the stance appropriately to be adopted by local authorities in future such cases.

In relation to the first, Mr Bowen takes issue with the guardian ad litem (in relation to A), with B and with the Official Solicitor (in relation to C) on their submission that these proceedings should never have been brought by the local authority. He submits that, given the current uncertainty as to the circumstances that constitute a deprivation of liberty, the information that was available to the local authority was such as to demonstrate that A and C were arguably being deprived of their liberty and, therefore that the local authority was entitled – he would say obliged by its positive obligations derived from Article 5 – to apply to the court for determination of the issue. Thus, says Mr Bowen, the Commission endorses the local authority’s approach as being not only a reasonable and responsible exercise of its powers and duties but also the lawful exercise of its positive obligations under Article 5.

Ms Freeborn, on behalf of A, and Mr O’Brien, on behalf of B, submit that section 100(4)(b) of the Children Act 1989 precludes any exercise by the court of its inherent jurisdiction in relation to A because there was not, they say, reasonable cause to believe that A was likely to suffer significant harm if the inherent jurisdiction was not exercised. Ms Ball on behalf of C also questions whether there was any need for litigation.

There is no need for me to decide whether the local authority here was under the duty postulated by Mr Bowen but I agree with him, and for the reasons he has given, that the local authority was entitled to commence the proceedings in both these cases and was acting responsibly and reasonably in doing so. So far as concerns the argument based on section 100(4)(b), the short point, in my judgment, is that any unauthorised deprivation of liberty within the meaning of Article 5 must surely involve the possibility – and that is all that the phrase “is likely” connotes – of something properly described as significant harm in the statutory sense.

That issue, in the nature of things, is now of purely historical interest. The much more important issue, given the clarification which has now been afforded on these matters by Parker J in Re MIG and MEG [2010] EWHC 785 (Fam) and, I hope, by me in this judgment, is as to the more general question of what local authorities should do in future in cases such as this.

Mr Bowen made a number of very helpful submissions which there is no need for me to explore in detail. At the end of the day, the question with which I am here concerned is whether, if there is any deprivation of liberty in these cases, that is something for which the State – the local authority – is responsible. It is in that context that, as I readily accept, I need to explore the ambit of the positive obligations attaching to local authorities by virtue of Article 5. But it is not necessary for me to embark upon any more general analysis of the possible reach of Article 5, and it is in fact undesirable that I do so. That exercise raises issues which are not before me and which are properly to be explored as and when the occasion arises. Moreover, it is not the function of judges to draft practice manuals for public authorities. Mr Bowen will, I trust, forgive me if I therefore take matters quite shortly. (Footnote: ¹⁰)

For present purposes I can summarise my conclusions as follows. Where the State – here, a local authority – knows or ought to know that a vulnerable child or adult is subject to restrictions on their liberty by a private individual that arguably give rise to a deprivation of liberty, then its positive obligations under Article 5 will be triggered.

What emerges from this is that, whatever the extent of a local authority’s positive obligations under Article 5, its duties, and more important its powers, are limited. In essence, its duties are threefold: a duty in appropriate circumstances to investigate; a duty in appropriate circumstances to provide supporting services; and a duty in appropriate circumstances to refer the matter to the court. But, and this is a key message, whatever the positive obligations of a local authority under Article 5 may be, they do not clothe it with any power to regulate, control, compel, restrain, confine or coerce. A local authority which seeks to do so must either point to specific statutory authority for what it is doing – and, as I have pointed out, such statutory powers are, by and large, lacking in cases such as this – or obtain the appropriate sanction of the court. Of course if there is immediate threat to life or limb a local authority will be justified in taking protective (including compulsory) steps: R (G) v Nottingham City Council [2008] EWHC 152 (Admin), [2008] 1 FLR 1660, at para [21]. But it must follow up any such intervention with an immediate application to the court.

This is not in any way to belittle the very considerable help I have derived from Mr Bowen’s very able and illuminating submissions, but it will not, I suspect, have escaped the attentive reader that my conclusions as I have just set them out, albeit informed and no doubt improved by Mr Bowen’s enormously helpful analysis of the Convention jurisprudence, nonetheless accord very much in substance with Hedley J’s conclusions as set out in the passage from his judgment in Re Z (Local Authority: Duty) [2004] EWHC 2817 (Fam), [2005] 1 FLR 740, which I have already quoted. Although expressed in different words, and albeit the forensic journey may have taken us on different routes, I do not think that there is any essential difference between the principles so succinctly set out by Hedley J and the principles as I have set them out.

Before passing from this part of the case there are two final points which I should emphasise. In the first place, it is vital that local authorities embark upon the kind of investigations that Hedley J and I have described with sensitivity and with a proper appreciation of the limited extent of their powers. Social workers need to keep their eyes open and their professional antennae alert when meeting or visiting their clients. And if there is real cause for concern they must act quickly and decisively. But they must guard against being seen as prying or snooping on the families who they are there to help and support. Nothing is more destructive of the ‘working together’ relationship which in this kind of context, as in others, is so vitally important than a perception by family carers that the local authority is being heavy-handed or worse. I repeat in this context what I have already said in paragraphs [51]-[53] above.

The other point relates to how local authority applications to the court should be made. Too often, in my experience, local authorities seeking the assistance of the court in removing an incapacitated or vulnerable adult from their home against their wishes or against the wishes of the relatives or friends caring for them, apply ex parte (without notice) and, I have to say, too often such orders have been made by the court without any prior warning to those affected and in circumstances where such seeming heavy-handedness is not easy to justify and can too often turn out to be completely counter-productive: cf X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341, at para [93]. I agree in every respect and would wish to associate myself with what Charles J said in B Borough Council v S (By the Official Solicitor) [2006] EWHC 2584 (Fam), [2007] 1 FLR 1600, at paras [37]-[42]. And although I accept that the analogy is not exact, it seems to me that, generally speaking, a local authority will only be justified in seeking a without notice order for the removal of an incapacitated or vulnerable adult in the kind of circumstances which in the case of a child would justify a without notice application for an emergency protection order; as to which see X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341, and Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701. That said, there will, of course, be cases in the adult jurisdiction where, just as in the corresponding children jurisdiction, a without notice application will be justified; indeed (see para [81]), B Borough Council was just such a case.

I turn, therefore, to the question of whether, on the facts of these two cases, Article 5 is engaged and, first, to the question of whether, if there is any deprivation of liberty here, it is imputable to the State in such a way as to make the State responsible.

To engage Article 5 a deprivation of liberty must be imputable to the State. In other words, and in particular where, as here, what is said to be a deprivation of liberty is seemingly being effected by a private individual (and the same applies if it is being effected by a private institution) it is necessary to show that the State is responsible. Referring to Storck v Germany (2005) 43 EHRR 96 at para [89], Mr Bowen submits, and I agree, that this may happen in one of three ways:

The question, therefore, is whether the local authority was so “directly involved” here as to engage the State’s responsibility under that head. In my judgment it was not.

It is convenient at this point to return to what the Strasbourg court said in Storck v Germany (2005) 43 EHRR 96 at paras [90]-[91] (emphasis added):

“The Court observes that it is not disputed between the parties that the applicant’s confinement to the private clinic in Bremen had not been authorised by a court or any other state entity. Likewise, at least at the relevant time, there was no system providing for supervision by state authorities of the lawfulness and conditions of confinement of persons being treated in the said clinic.

However, the Court notes that on March 4, 1979 the police, by use of force, had brought the applicant back to the clinic from which she had fled. Thereby, public authorities became actively involved in the applicant’s placement in the clinic. The Court observes that there is no indication that the applicant’s express objection to returning to the clinic had led to any control on the part of the police or any other public authority of the lawfulness of the applicant’s confinement to a private hospital. Therefore, even though state authorities caused the applicant’s detention in the clinic only towards the end of her placement, this engaged their responsibility, as her confinement had otherwise ended on that date.”

The court adopted the same analysis when considering at para [146] the analogous question which arose under Article 8 (emphasis added):

“The Court, referring to its findings under Art 5(1), observes that on March 4, 1979 the police had brought the applicant back to the clinic by force, thereby rendering her further treatment there possible. At that stage, public authorities became actively involved in and therefore responsible for the applicant’s ensuing medical treatment.”

The facts here could not be more different. A and C live at home with their families. They have not been placed there by the local authority nor, as I have sought to explain when considering the involvement of the local authority in their lives, is their living at home, or the circumstances in which they live at home, the result of any exercise of powers or responsibilities by the local authority. Indeed, as I have been at pains to demonstrate, in neither case does the local authority have any power to regulate, control, compel, restrain, confine or coerce them or their carers. Nor, despite some of the rhetoric which has been used, has the local authority in fact sought to do so.

The local authority provides services and support to A and her family and to C and her family. It knows what goes on in the family home. But that is all. A local authority engaged in that way is not, in my judgment, so directly or actively involved in the domestic, family, regime as thereby to make the local authority – the State – responsible for that regime. Nothing has happened in the present cases remotely like the events which in Storck made the public authorities responsible.

Mr Sherman suggests that the degree of local authority involvement here justifies the contrary view. He says that the local authority is actively involved in the decisions to lock A and C in their bedrooms at night “by including this in its assessments and care plan”, adding that “it positively encourages such actions and provides services to ensure that this can be undertaken with a minimum of risk.” By reason of its knowledge of the circumstances and what he calls its active support of the actions taken by their carers, the local authority, he says, would be in breach of its positive obligations under the Convention if it failed either to prevent the deprivation of liberty or to seek the court’s sanction to render it lawful.

Ms Freeborn describes the submission as puzzling, given what she says is the low level of the local authority’s involvement in A’s day to day care and the absence of any involvement in her overnight care. As Mr O’Brien says on behalf of B, the level of care provided to A is 4 hours per week. No other additional care or support is provided, apart from respite care which has recently been offered, and the local authority is not involved in the provision of any care for A during the period she is locked in her bedroom. And the decision to lock A in her bedroom was taken by B alone. Ms Ball on behalf of C says much the same. The local authority is not directly involved in the way in which C is restricted at home. The local authority may have endorsed her home arrangements but they have not caused them. Moreover, as she correctly points out, those arrangements did not need to be endorsed by the local authority in order to continue lawfully.

I agree with Ms Freeborn, Mr O’Brien and Ms Ball. There was no direct or active involvement by the local authority. It was not the decision-maker. It took no active steps to implement what the families had decided. Mere knowledge, in my judgment, is not enough. Knowledge may suffice to trigger a local authority’s duty to investigate and, if appropriate, to invoke judicial assistance. But, as I have already said, there is no basis for attributing to the local authority here any failure in its performance of such obligations.

My conclusions thus far mean that there has been no breach of Article 5 by the local authority and that the involvement of the local authority has not been such as thereby to make the State liable under Article 5 for whatever is happening to A and C in their homes. But the matter having been brought – properly and appropriately – to the attention of the court it is my duty under Article 5 to consider whether, as a matter of fact, either A or C is being “deprived of her liberty” in the sense in which that expression is used in Article 5(1).

It is common ground, as I have already said, that this involves two elements: an objective element and a subjective element.

So far as concerns the subjective element, I can take matters quite shortly. There is no deprivation of liberty if a person gives a valid consent to their confinement. But a person may give a valid consent to their confinement only if they have capacity to do so: Storck v Germany (2005) 43 EHRR 96 at paras [76]-[77]. Express refusal of consent by a person who has capacity will be determinative of this aspect of deprivation of liberty: Storck v Germany at para [77]). But the same cannot be said of a person who lacks capacity, although his objections to remaining where he is may be a factor indicative of a deprivation of liberty, as in JE v DE (By his Litigation Friend the Official Solicitor), Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, esp at paras [124]-[125]. Where a person has capacity, consent to their confinement may be inferred from the fact that the person does not object: HL v United Kingdom (2004) 40 EHRR 761 at para [93] and Storck v Germany at para [77] explaining HM v Switzerland (2002) 38 EHRR 314 at para [46]. But no such conclusion may be drawn in the case of a person lacking capacity to consent: HL v United Kingdom at para [90].

So in the present case, where it is clear that both A and C lack the relevant capacity to consent to the restrictions they have been subjected to, there can be no dispute but that the subjective element is satisfied. Indeed, that is correctly common ground between all the parties (subject only, in the case of A, to an argument based upon Neilsen v Denmark (1988) 11 EHRR 175 which I deal with below).

The key question, therefore, is whether the objective element is satisfied. The Commission agrees with the Guardian ad Litem and the mother, B, in the case of A and with the Official Solicitor in the case of C, differing in this respect from the local authority which suggests the contrary, that neither A nor C is being deprived of her liberty within the meaning of Article 5, because, it is submitted, the objective element is not satisfied in either case. I agree.

In neither home does the regime involve a deprivation of liberty. And in saying this I should make clear that I do not see this as being a borderline case or a case which falls to be decided on a fine balance. In my judgment, the loving, caring, regime in each of these family homes – a reasonable, proportionate and entirely appropriate regime implemented by devoted parents in the context of a loving family relationship and with the single view to the welfare, happiness and best interests of A and C respectively – falls significantly short of anything that would engage Article 5.

As events have turned out this part of my judgment can be significantly shorter than might otherwise have been the case, for I can take almost everything of importance from Parker J’s judgment in Re MIG and MEG [2010] EWHC 785 (Fam).

In that case Parker J was concerned with two young women both of whom lacked capacity, MIG who was 18 years old and MEG who was 17. Neither lived in the family home: MIG lived with a foster carer, JW, and MEG at a small residential home, B home. Amongst the issues that Parker J had to decide was whether, as the Official Solicitor alleged (see para [125]), MIG and MEG were each being deprived of their liberty in those placements. Parker J held (para [237]) that they were not.

Paragraphs [127]-[206] of Parker J’s judgment contain a long, detailed and, if I may be permitted to say so, cogent and compelling analysis of what is meant by deprivation of liberty in this kind of context. I have read that analysis with admiration and I agree with it.

Parker J’s comprehensive analysis embraces not merely all the Strasbourg cases to which I have already referred but also various other authorities, including the important decisions of the House of Lords in Secretary of State for the Home Department v JJ and others [2007] UKHL 45, [2008] 1 AC 385 (the ‘control order’ case) and Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] AC 564 (the police ‘kettling’ case). Both her conclusions of law and, in all material respects, her analysis accord entirely with the views to which, as I would emphasise, I had already independently come before reading her judgment, views to which I had come having considered the same authorities as those to which she refers and having had the benefit of arguments from counsel which find many echoes in her analysis.

Plainly, were I to express matters in my own words there might be differences of nuance or emphasis between us, but in my judgment no useful purpose would be served, either for those interested in the present case or more generally, were I to undertake the exercise. And there is, as it seems to me, good reason why I should not, quite apart from all questions of judicial comity. Multiple judgments from an appellate court can sometimes provide additional enlightenment. But different considerations must apply at first instance where there is, in my view, positive advantage in litigants and their advisers being spared the burden of having to read two judgments by puisne judges which both in essence say the same thing.

I turn therefore to Parker J’s judgment. The relevant parts of it require to be read in full; I confine myself here to citing the salient passages.

Parker J started (at para [133]) with a helpful and, as it seems to me, entirely accurate summary of general principle:

“Since the decision in Guzzardi (1981) 3 EHRR 333, (a case involving a suspected member of the Mafia detained on a small island off the coast of Italy) the principle has been consistently expressed that that the aim of Article 5 is to ensure that no one should be dispossessed of liberty in an arbitrary fashion, as opposed to being subject to restraints on liberty. Article 5 is to be distinguished from Article 2 of the Fourth Protocol (not ratified by the UK) which deals with mere restrictions on liberty of movement. The Court in Guzzardi said

“in order to determine whether someone has been deprived of his liberty within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question … the difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance … deprivation of liberty may … take numerous other forms” than “classic detention in prison or strict arrest imposed on a serviceman.”

This statement of principle has been repeated through a long line of authority, and specifically in cases relating to mental health, psychiatric in-patient treatment, and admission to care homes.”

She continued at para [136]:

“Deprivation of liberty may take many forms, and does not require the detained person to be kept under lock or key. But the starting point is the “paradigm” example of the prisoner in the cell (see JJ per Lord Hoffmann at [37]) which

“amounts to a complete deprivation of human autonomy and dignity. The prisoner has no freedom of choice about anything. He cannot leave the place to which he has assigned. He may eat only when and what his jailer permits. The only human beings he may see or speak to are his jailers and those whom they allow to visit. He is entirely subject to the view of others.”

It is not necessary for the detained person to be physically confined, nor that the premises or accommodation in which he is kept should be locked: Guzzardi is an example, as are the control order cases.”

Analysing Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] AC 564, Parker J drew attention (at paras [157]-159]) to the focus by Lord Hope of Craighead and Lord Scott of Foscote upon the “purpose” for which a person’s freedom of movement was being restricted, before referring (at para [160]) to the speech of Lord Walker of Gestingthorpe who, she said, had:

“described Lord Hope’s opinion as to purpose as “guarded”, referring to HL v United Kingdom and Storck v Germany, and stating that “if confinement amounting to deprivation of liberty and personal security is established, good intentions cannot make up for any deficiencies in justification of the confinement under one of the exceptions listed in Article 5(1) (a) to (f), which are to be strictly construed.””

There follows (at paras [163]-[166]) an important passage which requires to be set out in full:

“In my judgment the decision in Austin cannot be divorced from its context. The question of purpose or intention in Austin was intimately bound up in the evaluation of all the circumstances, namely that the police had a duty to maintain public order and where the interests of the public had to be considered. It was pre-eminently a “balance” case. It also seems to me that although the words “purpose” and “intention” are used synonymously in certain passages in Austin, the word “intention” is not used in the same sense as in HL v United Kingdom and JE v DE. In HL v United Kingdom and in DE v JE the word “intention” is used in the sense of the mental attitude with which a person acts, whereas “purpose” in the sense that it is used in Austin is more akin to motive, the motive of the police being to exercise crowd control, rather than to confine the demonstrators. Lord Scott however in stating at [39] that “the intention of the police was to maintain the cordon so long as was reasonably thought necessary” uses the word “intention” in the sense of mental attitude, whilst Lord Hope in saying at [24] “detention in the paradigm sense was not in the minds of anyone”, seems to be referring to “motive”. The heart of the case lies in the passage in the speech of Lord Walker “what were the police doing …? What were they about? The answer is … that they were engaged in an unusually difficult exercise in crowd control …” [47]. The question of purpose posed at the outset is in the end answered only in the qualified ways set out above.

I accept that the question of intention in the sense of mental attitude is irrelevant to the question of whether a person is deprived of their liberty. A person’s belief that they are not depriving another of their liberty is likely to be irrelevant and may be inaccurate. In HL v United Kingdom the hospital representatives denied that it was in their minds to confine HL because he was free to leave at any time, a concept which Lord Steyn in the House of Lords in Bournewood described as a “fairytale”. So I treat with extreme caution the suggestion that purpose is relevant in this type of case, save that it does seem to me to be realistic to put into the equation when trying to discern the factual matrix and whether these girls are objectively deprived of their liberty, that both girls were placed in their respective placements as children in need, because they need homes, rather than because they require restraint, or treatment. It is also relevant in my view to consider the reasons why they are under continuous supervision and control.

I take from Austin the statement that in a search for a decision as to which side of the line a particular case falls, the paradigm example of the confined prisoner must be held up for comparison, whilst recognising that deprivation of liberty can take many other forms.

I note that in JJ Baroness Hale of Richmond stated at para [58] “It also appears that restrictions designed for the benefit of the person concerned are less likely to be considered a deprivation of liberty than those designed for the benefit of society”, referring to Nielsen v Denmark, HM v Switzerland, HL v United Kingdom, and Secretary of State for the Home Department v Mental Health Review Tribunal and PH, but this comment was made in the context of a control order and precedes Storck v Germany.”

I agree with Parker J that the focus must be on the context, the factual matrix, what in Guzzardi was referred to as the “concrete situation”, and that one must be careful not to put undue emphasis upon such matters as purpose and intention.

So far as is material for present purposes, Parker J then turned to consider (para [198]) whether there can be a deprivation of liberty in a domestic setting. Unsurprisingly she held that there can.

In Re S (Habeas Corpus); S v Haringey London Borough Council [2003] EWHC 2734 (Admin), [2004] 1 FLR 590, I had to consider a mother’s application for a writ of habeas corpus in a case where her children had been taken into care and placed with a local authority foster carer. In the course of explaining why the claim was groundless, I said this at para [28]:

“Habeas corpus ad subjiciendum (which is the form of the writ with which I am concerned) is a remedy protecting the citizen or subject against an unlawful detention or imprisonment. Detention need not be at the hands of the state or public authority. Even a domestic house may for this purpose be a prison: see R v Jackson [1891] 1 QB 671, esp per Lord Esher MR at 682. That was the celebrated case where a wife who had been detained by her husband in his house, being given the full run of the house short of leaving it, was freed on a habeas corpus, the Court of Appeal denying that a husband has in law any right either to imprison or to confine his wife.”

I made the same point in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at para [54]:

“although one tends to think of habeas corpus as a remedy against state action, the unlawful detention need not be at the hands of the state or public authority. Even a domestic house may for this purpose be a prison”.

So a parent can be guilty of both the tort and the crime of falsely imprisoning their child: see R v Rahman (1985) 81 Cr App R 349. And any reader of newspapers will have read of too many distressing cases where neglectful or uncaring parents have kept helpless children confined without any justification in cellars, cupboards or rooms in such conditions and for such protracted periods as would indubitably have amounted to both false imprisonment at common law and deprivation of liberty for the purposes of Article 5.

But the fact that a domestic setting can involve a deprivation of liberty does not, of course, mean that it very often will. And typically in the kind of context with which I am here concerned – care of children or vulnerable adults by their parents in the family home – there will not, in my judgment, be any deprivation of liberty, whether that phrase is used in the Article 5 sense or in the context of the common law tort and crime of false imprisonment. As I went on to observe in Re S:

“But there must be a detention. The children in the present case are not in secure accommodation (whether in the sense in which that expression is used in s 25 of the Children Act 1989 or in any other sense). They are not being detained. They are simply living with foster parents in exactly the same type of domestic setting as any other children of their ages would be, whether living at home with their parents or staying with friends or relatives. Habeas corpus does not lie because a parent, or other person in loco parentis, makes it a rule that a child of tender years is not to leave the house unless accompanied by some suitable person or because an exasperated parent has sent a naughty child to his room and told him to stay there for 2 hours or because a rebellious teenager has been ‘grounded’ or subjected to a parentally enforced curfew, any more than habeas corpus lies if the headmaster of a boarding school forbids his charges to leave the school premises except at permitted times and for permitted purposes. And it makes no difference for this purpose that the domestic rule is actually enforced by the turning of a key in a lock.”

The same point arose before Baker J in G v E and others [2010] EWHC 621 (Fam), a case of an adult, E, with severe learning disability suffering from a rare and very complex genetic condition known as tuberous sclerosis. E had been living for over ten years with F, initially as a foster carer and subsequently under an adult placement, until he was removed by the local authority in circumstances of which Baker J was extremely critical and which he found had breached E’s Article 8 rights. The local authority then placed E at successive units without any prior judicial sanction and in circumstances which Baker J found involved an unlawful deprivation by the local authority of E’s liberty constituting a breach of his Article 5 rights.

In the context of a dispute as to whether E’s placement again with F would deprive E of his liberty (see para [115]), Baker J was presented with the argument by the local authority that E’s degree of disability and lack of capacity was such that any placement, whether with F or elsewhere, would require a deprivation of liberty. Counsel for F, supported by counsel for E’s sister, G, submitted that the argument was fallacious. Baker J summarised the submission of counsel for F as follows (para [116]):

“To return E to his home and family would not constitute a deprivation of liberty. The concrete situation will be the familiar surroundings of home and family life to which he is accustomed. Other members of his family could visit whenever they wished. In F’s home, E has his own bedroom which is always kept open due to the risks presented by his epilepsy. [Counsel for G] submits that the suggestion that E’s lack of capacity was so extreme that he would always be deprived of his liberty, wherever he was, and even if returned to F, demonstrates a fundamental misunderstanding of Article 5. The “core element” is confinement, per Secretary of State for the Home Department v E [2008] AC 499 per Baroness Hale of Richmond at paragraph 25. She submits that the suggestion that F’s home constituted a particular restricted space is untenable. Nor is there any evidence that E was confined to that home for a significant length of time. On the contrary, she submits, E was entirely free to leave, (and frequently did leave) subject only to proportionate safeguards which, at most, would be a restriction on, rather than deprivation of, liberty. There were no restrictions imposed on any person having access to him. The Official Solicitor also disagrees with the local authority, contending that if E were to return to F he would probably not be deprived of his liberty within the meaning of Article 5. But he submits that it is unnecessary and undesirable for the Court to rule on this point.”

Baker J seems to have been attracted by these arguments (just as I am), commenting (at para [117]) that:

“Common sense suggests that when considering deprivation of liberty there is a clear distinction between a placement at home, with family or an adult carer, and in a residential establishment. One can of course think of circumstances – those of the first Mrs. Rochester in “Jane Eyre”, for example – where someone might be deprived of their liberty although living at home. But in most cases the circumstances are more likely to fall into the category of a restriction, rather than a deprivation, of liberty.”

I respectfully agree. However, he declined to make any ruling on the issue, first, because he had not heard full legal argument on the matter, secondly, because he had been told that a judgment was “hotly awaited” from a senior judge which, he said, it was anticipated would address this issue after full argument and, finally, because he did not consider that any ruling he made about whether or not a placement with F would constitute deprivation of E’s liberty would have any bearing on his interim best interests assessment.

I do not know whether Baker J’s reference was to me, to Parker J or to some other judge, but the fact is that similar points were raised before Parker J. Having referred (para [198]) to my judgment in Re SA, Parker J said (para [199]): “In my view it is possible for a person to be deprived of their liberty in a domestic setting”, citing as obvious examples control orders and house arrest generally. She continued, however, with these important qualifications (paras [200]-[201]):

“But conversely, even a degree of confinement in particular premises may not constitute deprivation of liberty. In my view there must be a significant element of confinement, of restriction, which crosses the line between restrictions on liberty and confinement. In JJ, the House of Lords held by a majority that 18 hours a day confinement in a small flat with other restrictions on movement constituted deprivation of liberty. Lord Brown of Eaton under Heywood (one of the majority) was the only member of the committee who gave consideration to what would cross the line. He said

“18 hour curfews are simply too long to be consistent with the retention of physical liberty. In my opinion they breach Article 5. I am equally clear however that 12 or 14 hour curfews … are consistent with physical liberty … for my part I would regard the acceptable limit to be 16 hours leaving the suspect with 8 hours (admittedly in various respects controlled) liberty a day. Such a regime … can and should properly be characterised as one which restricts the subject’s liberty of movement rather than one which actually deprives him of his liberty. Permanent confinement beyond 16 hours a day on a long term basis necessarily to my mind involved the deprivation of physical liberty.”

In Secretary of State for the Home Department v GG [2009] EWHC 142, Collins J held, at [52], that

“the curfew period cannot be considered in isolation. Whether there is deprivation of liberty and so a breach of Article 5 will depend on the effect of the restrictions. Thus a 16 hours curfew coupled with restrictions on visits for one removed from his home area and so living where he knows no one and so effectively subjected to isolation may well mean that 16 hours can be regarded as excessive. Having said that, it is clear from the speeches in JJ that what must be the principal focus is the extent to which the controlled person is actually confined.””

Parker J added this (at para [202]):

“In my judgment the question of whether ‘P’ is in an institutional setting also cannot be left out of the evaluation. It is notable that in HL v United Kingdom it was not suggested that HL would be deprived of his liberty in the domestic setting of the home of the foster carers, a placement to which he also lacked capacity to consent or dissent, and which he was not free to leave. The foster carers are described as “paid carers” and they must, I assume, have been employed by the Local Authority with social work responsibility for HL. In HM v Switzerland, although I accept that the principles were not there so clearly defined as in subsequent cases, the setting in which HM was living seems to have been one of the factors which was taken into account.”

Touching on the point which had been left undecided by Baker J, though she seems not to have been aware of his judgment, Parker J continued (at paras [203]-[204]) with these important observations:

“There is a valid distinction in my judgment between a confinement within the home: equivalent to house arrest, as in the control orders cases, and the mere fact of being placed in a foster home. As Collins J said in GG, it is the effect of the restrictions and the extent of the confinement which matters. And Lord Bingham in JJ stressed the need to examine what the person’s life would have been like had they not been placed in the location where they are said to be confined. I do not accept that mere placement in a residential or domestic setting can be construed as creating confinement of itself just because the person cannot legally decide whether to remain there or not. In my judgment, if a person is living what is for them a normal life in a family home, and would not be living any different life in any other setting including in their own family home, then it is very difficult to see how they can objectively be confined, simply because they lack the capacity to consent to that placement.

A person who lacks capacity and who cannot therefore give or withhold consent may nonetheless express a wish not to be in a particular setting. In JE v DE Munby J placed very considerable weight on the fact that although incapable of taking a decision as to his residence, JE consistently stated his wish to leave. The applicant in Storck v Germany wished to leave the hospital and attempted to run away. Notwithstanding that MIG and MEG cannot consent to their placements, the fact of happiness in their respective environments, each regarding the place where they live as home, and their wish to stay there, must be relevant to the question of both the objective and the subjective element.”

She returned to the point (at paras [223]-224]):

“It is said that that MIG and MEG are each deprived of their liberty because they lack the capacity to consent or to object to their placement, and that they lack the freedom to leave where they are living. In my view this casts the net too wide.

I have set out above at paragraphs 202-204 my analysis, which I shall not repeat, as to whether mere lack of capacity to consent to living arrangements can in itself create a deprivation of liberty. I add that if mere lack of capacity to consent were enough then all such persons placed by a Local Authority would be considered to be deprived of their liberty. The provisions of the Mental Capacity Act 2005 and the Code of Practice and the Deprivation of Liberty Safeguards Code plainly do not support that analysis.”

I agree with Parker J’s analysis, in particular her identification of the importance of the “setting”.

So much for Parker J’s analysis of the law – an analysis with which I agree. She then turned to consider (paras [207]-[237]) whether in the light of their specific circumstances either MIG or MEG was being deprived of her liberty. As I have said, she found that neither of them was.

Now obviously every case must turn on its own facts. And cases of the kind which Baker J, Parker J and I have been dealing with are more than usually fact sensitive, calling for intense and meticulous scrutiny of their specific facts in circumstances where, as Parker J pointed out (at para [220]) referring to an observation by Lord Bingham in JJ, “it is dangerous to transpose the effects of decisions from other decided cases on different facts.” But it is nonetheless illuminating to follow the reasoning that led Parker J to her conclusions in relation to MIG who, it will be remembered, lived with a foster carer, unlike MEG, who lived in a residential home and, moreover, received medication for the purpose of controlling her anxiety.

The Official Solicitor’s argument, as summarised by Parker J (at para [193]), was that:

“on fine balance MIG is deprived of her liberty, because in the sense in which the ECHR in HL v United Kingdom, and Munby J in DE v JE analysed the concept, she is unable to decide where she is able to live, is not free to leave, is subject to continuous supervision and control, and is deprived of social contacts by the declaration which I make in relation to her family and others.”

So far as concerned MIG, Parker J described her circumstances as follows (paras [209]-[211]):

“MIG is living in an ordinary domestic environment which she regards as home. She is not restrained in any way. She is not locked in in any way, (although she does refuse to keep her bedroom door open, causing some concern to her foster parents). She does not wish to leave. She wants to stay with JW. She loves JW and regards JW as her “Mummy”.

Continuous supervision and control is exercised so as to meet her care needs. Limitations on movement are generally dictated by limitations in MIG’s ability, or her lack of awareness of danger. She has never sought to leave the home. If she were to try to leave she would be restrained for her own immediate safety. MIG has no sense of safety and in particular no awareness of road safety. She needs to be guided and accompanied. She needs guidance in crossing roads. This is because of her disability. Such restraints do not amount in my judgment to deprivation of liberty. She is not medicated.

There are no restrictions on her social contacts save by way of court declaration. She has as many social contacts within and outside the home as she is able in accordance with her own capacity to interact with others. She goes to college. She is transported to and from college. Whilst there she is not under the control of JW or the [local authority].”

I need not set out her corresponding description of MEG’s circumstances (paras [215]-[218]).

Against this factual background, Parker J continued (at paras [224]-[225]):

“Although neither is able to consent to their living arrangements, the fact of their wishes is an important part of the factual context: each wants to remain living in her present environment.

Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment.”

She added (at paras [227]-[230]):

“On the basis, as I have found, that placement in itself and lack of consent in itself is not sufficient to create a deprivation of liberty in the circumstances of this case, then there must in my judgment be some other specific course of action adopted or measure taken whereby restraints or restrictions are placed upon an individual of sufficient degree and intensity to constitute a deprivation of liberty. The guidance in the Deprivation of Liberty Safeguards Code supports this analysis.

In neither placement in my judgment is there “confinement in a restricted space for a not negligible length of time.” MIG is living in a foster home and goes to college during the day; MEG is living in a residential home and goes to college during the day. In the evenings they return to their respective homes. In their circumstances, and by comparison with the considerations in the control order cases, neither is subject to any form of house arrest or curfew.

The “concrete situation” is that each lives exactly the kind of life that she would be capable of living in the home of her own family or a relative: their respective lives being dictated by their own cognitive limitations. Each is subject to limitations on her own autonomy and freedom of movement and ability to enjoy activities by being guided or accompanied in order to provide for her own immediate protection.

I agree that it is impermissible for me to consider whether, if either is objectively detained or confined, this is with good or benign intentions or in their best interests. But notwithstanding that, as was observed by Lord Walker in Austin, “purpose” does not figure in the list of factors to be evaluated in determining the concrete situation of the person concerned, I am of the view that in this case it is permissible to look at the “reasons” why they are each living where they are. In the case of each there are overwhelming welfare grounds for them not to live in their family of origin. In relation to both girls, the primary intention is to provide them each with a home. Within those homes, they are not objectively deprived of their liberty. In neither of those homes are they there principally for the purpose of being “treated and managed”. They are there to receive care.”

She concluded her judgment as follows (paras [234]-[237]):

“I have not met MIG or MEG but I have read much about them and heard much too. Their wishes and feelings are manifest and clearly expressed. They plainly have no subjective sense of confinement. In a non legal sense they have the capacity to consent to their placements. I cannot imagine that any person visiting MIG at the home of JW … would gain any sense of confinement or detention.

Those circumstances are in my judgment very far from the “paradigm” example of imprisonment.

[Counsel for the Official Solicitor] submitted to me that the purpose of the legislation is to protect vulnerable persons who are subject to more than minimal intervention. She says that MEG will be subject to intervention and physical restraint because she is in a residential home and is medicated and that it would be “sad if she didn’t get the benefit of the legislation”. But that is not the test. The question is, are the restrictions of such a degree and intensity that she is objectively deprived of her liberty. In my view they are not.

In my view neither is deprived of her liberty within Article 5(b) nor is there any breach of the right of either to respect to private or family life pursuant to Article 8.”

I respectfully agree both with the general thrust of Parker J’s analysis, so far as it applies to MIG, and with her conclusion that MIG was not being deprived of her liberty. So far as concerns MEG, her circumstances are sufficiently different from the circumstances of both A and C as to make it unnecessary and, indeed, inappropriate for me to express any views.

I return to the facts of the two cases with which I am here concerned.

But for the fact that they are each locked in their bedrooms at night, Parker J’s analysis and conclusions in relation to MIG would lead me, and for essentially the same reasons, unhesitatingly to the conclusion that neither A nor C is being deprived of her liberty. Their happy family life, in the heart of a caring and loving family, can hardly be further removed from the paradigm case of the prisoner or, indeed the immensely different case of someone subject to control order and curfew. Does the fact that, during the night time, they are locked in their bedrooms, alone make the difference? In my judgment it does not.

Having regard to the context, to the “concrete situation” in which A and C find themselves, in the setting of their family life, with their parents in the family home, neither of them is being deprived of her liberty, even during the period during the night time when she is locked in her bedroom.

Ms Freeborn, on behalf of A, urges me to have regard to the context – a caring and loving regime which enables A to continue to live within a loving child-centred family home surrounded by people who have her best interests as their motivation, where she is the centre of the family life and where she is untroubled by the measures to keep her and the rest of the family safe from her behaviour at night by locking her bedroom door.

Mr O’Brien, on behalf of B, says much the same. He points out that the restriction is to protect A from harm and that, as recognised by all the expert evidence, it is in her interests. And – an important point – he emphasises that A is not confined for the purposes of punishment but to safeguard her welfare.

Ms Ball makes the same submission in relation to C. She says that the universally praised care provided to C by her devoted parents partly takes the form of restrictions. But, she says, such restrictions are needed because of specific features of C’s genetic condition, to help her lead the best life she can. C’s parents, she say, are looking after her, not punishing her; promoting and improving her autonomy and dignity, not restricting them; and in supporting her as they do they are giving to her, not taking away. Such arrangements, she submits, are not even on the borderline between a deprivation and a mere restriction of liberty; the caring restrictions imposed by C’s parents in the context of their home and family life together clearly fall, she says, outside the category of cases which Article 5 is intended to regulate. The restrictions upon C, imposed in the context of her family life, are, says Ms Ball, as ‘normal’ as they could conceivably be for someone with C’s condition. They are not arbitrary at all but, rather, tailored to her needs, proportionate and imposed in good faith. Moreover, she says, it has to be remembered that A and C are inherently restricted by the manifestations of their genetic condition. The ‘restrictions’ imposed upon them do not in fact, she says, restrict their liberty in any meaningful sense of the word. Rather, in the context of their restrictive condition, they maximise their opportunities and help them to live their lives to the full.

I agree with these powerful submissions, just as I agree with the more specific submission that, taking account of what is referred to in Guzzardi as the “type, duration, effects and manner of implementation” of the night time regimes, what we have here is merely a restriction upon liberty – and, I should add, an entirely appropriate and proportionate restriction upon liberty – rather than a deprivation of liberty. Not the least important and telling of the factors which have to be evaluated, and which in my judgment point towards the conclusion that there is no deprivation of liberty here, are the facts (a) that the regime in question applies only at night time and at a time when, but for their disabling condition, A and C would otherwise be expected to be asleep and (b) that although locked in their bedrooms both A and C are checked at night by their parents who, moreover, respond if their daughter wants to come out.

Mr Sherman, taking the opposite stance, submits that there is here a deprivation of liberty because A and C are not only locked in their bedrooms at night but also remain under continuous supervision and control during the day, whether at home or elsewhere. For reasons which will, I hope, be apparent I do not accept this analysis.

I should add, for the avoidance of any doubt, that I see no inconsistency between my reasoning and decision in these cases and my reasoning and decision in JE v DE (By his Litigation Friend the Official Solicitor), Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150. The circumstances in that case were very different, and in the final analysis all these cases are fact-sensitive.

Given my conclusion that the regimes to which A and C are subject do not involve any deprivation of liberty within the meaning of Article 5, there is no need for me to go on to consider the difficult question of whether, if I had come to a different view, the regime in relation to A could nonetheless be justified as an Article 5 compliant exercise of parental responsibility in accordance with the decision of the Strasbourg court in Neilsen v Denmark (1988) 11 EHRR 175.

Ms Freeborn, on behalf of A, and Mr O’Brien, on behalf of B, submit that the present case is on all fours with Neilsen and that, as Ms Freeborn puts it, B has properly and appropriately found it necessary in the discharge of her parental responsibility for A to restrict her liberty during the night in order to keep her safe from harm and to protect others in the house from the consequences of her actions were she free to roam – in just the same way, she says, as a caring and responsible parent restricts a child’s liberty by using a cot with high sides, a play pen, or a stair gate, or by keeping a grip on the child’s hand near or while crossing a road. Mr O’Brien says much the same.

Granted the premise, which I readily accept (and I wish to emphasise again that B, in relation to A, is, just like D and E in relation to C, acting in an entirely appropriate, proper, responsible and loving way), the conclusion does not necessarily follow as a matter of law.

Indeed, I have my doubts, for Neilsen, on this point, is widely perceived today as being questionable. And in saying this I emphasise that I have in mind not only my own observations in JE v DE (By his Litigation Friend the Official Solicitor), Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, but more importantly the views of various scholars and of Lord Walker of Gestingthorpe in Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] AC 564, at para [45]. As Mr Sherman asks rhetorically, why should the law in its application of Article 5 distinguish between two young persons who are, and always will, function in essentially the same way and at the same level just because one is under while the other is over the age of majority? But these are not matters I need to consider further, and it is better, as it seems to me, to leave them to be considered in a case where, unlike here, the point actually arises; that is, in a case where there is, the Neilsen point apart, a deprivation of liberty.

There remains one final point to be considered: the possible use of a ‘safe space’ for A. It is quite clear, as Ms Freeborn submits, that this would involve a greater curtailment of A’s liberty overnight (though not, I think, a deprivation of her liberty) in circumstances where no advantage – certainly no immediate advantage – has been identified and where B does not support the approach. Given the expert opinion I have referred to, B, in my judgment, is fully entitled to adopt this stance. Moreover, I agree with Ms Freeborn that this is something that can properly be entrusted to B in the continuing discharge of her parental responsibility. In my judgment it should be left to her. It is not something that requires judicial involvement.

In the outcome, all that is required is appropriate declaratory relief, essentially to the effect that neither A nor C is being deprived of her liberty. I invite counsel to agree the appropriate form of declarations to give effect to my judgment. No other relief would seem to be either necessary or appropriate. Nor will a continuation of the proceedings serve any useful purpose, there being, in the light of my conclusions, nothing left to litigate about.

I have not been addressed on the question of costs, but my preliminary view as set out in the draft of this judgment sent to the parties was that this is not a case in which I should make any order for costs as between the various parties. No-one has since contended otherwise. The order in each case will therefore be that there be no order for costs, save the usual assessment of any party being funded by the Legal Services Commission.

The judgment of Parker J in Re MIG and MEG [2010] EWHC 785 (Fam), from which I have quoted very extensively, was not, of course, available when this case was originally argued before me. Accordingly, when this judgment was sent to the parties in draft I invited counsel to indicate whether they wished to make any further submissions in relation to Parker J’s judgment, adding that I did not invite submission but would give counsel the opportunity if they wished. In the event none of them did.