Cheshire West and Chester Council v P [2011] EWCA Civ 1257

[2011] EWCA Civ 1257Case No B4/2011/1788
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2011] EWHC 1330 (Fam)
ON APPEAL FROM THE COURT OF PROTECTION
MR JUSTICE BAKER
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 November 2011
Before
LORD JUSTICE PILLLORD JUSTICE LLOYDLORD JUSTICE MUNBY
Between
CHESHIRE WEST AND CHESTER COUNCILAppellantP (by his litigation friend THE OFFICIAL SOLICITOR)Respondent
Ms Jenni Richards QC and Mr Neil Allen (instructed by Legal Services Department, Cheshire West and Chester Council) for AppellantMr Richard Gordon QC and Mr Simon Burrows (instructed by O’Donnells for Official Solicitor) for the RespondentHearing Hearing date : 22 September 2011
Judgment
[1]This is an appeal, pursuant to permission granted by Thorpe LJ on 5 August 2011, from that part of an order made in the Court of Protection by Baker J on 4 April 2011 which declared that P’s care plan at the property named in the order, which I shall refer to as “Z House”, involves a deprivation of his liberty for the purposes of Article 5 of the European Convention on Human Rights and Fundamental Freedoms. The judge’s reasons for coming to that conclusion are set out in the reserved judgment which he handed down on 14 June 2011: [2011] EWHC 1330 (Fam). The judgment dealt with a number of other matters as well as the Article 5 issue but it is that alone which is the subject of the appeal. The appeal is brought by the local authority responsible for meeting P’s community care needs and which provides him with accommodation at Z House.

The factual background

[2]Baker J’s judgment is in the public domain so I can be more economical in my statement of the relevant facts than would otherwise be appropriate.[3]P is a thirty-nine year old man who was born with cerebral palsy and Down’s Syndrome and has a history of cerebral vascular accidents. He presents with significant physical and learning disabilities. It is accepted by all parties that he lacks the mental capacity to make decisions as to his care and residence. He lived with his mother from birth until 2009. From December 2008, her health began to deteriorate to the point where the local authority concluded that she was no longer able to care for her son. On 4 September 2009 His Honour Judge Allweis declared “on an interim basis” that it was lawful and in Ps best interests for him to continue to reside at the local authority establishment at which he was then placed, or in any other placement with the local authority pending the final hearing. In November 2009, P moved to live at Z House, where he remains to this day. In his order of 4 April 2011 Baker J declared, pursuant to section 16 of the Mental Capacity Act 2005, that it is lawful and in P’s best interests that he continues to reside at Z House.[4]It will be appreciated that in the light of Baker J’s order the question of whether P’s circumstances at Z House involve a deprivation of liberty within the meaning of Article 5 does not go to the issue of the legality of the deprivation of liberty (if such it be), for the order makes lawful anything that might otherwise be unlawful as involving a breach of Article 5. What it does go to is whether P is entitled to the important procedural protections of Article 5(4) and, in particular, to the regular ongoing reviews of his detention (if such it be) mandated by Article 5: see my decisions in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, and Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam), [2010] 1 FLR 1373, and, most recently, in this court P and Q v Surrey County Council [2011] EWCA Civ 190, [2011] 2 FLR 583, paras [4], [47].[5]Baker J had the advantage of a report from Miss Dawn Whittaker, an independent social worker. I can pick up the narrative in para [5] of the judgment:
“Miss Whitaker describes Z House as “a large and spacious single-level bungalow” in which “the facilities generally are modern and cosy with a pleasant atmosphere.”
P has his own room that has been personalised to his needs and access to two nearby adapted bathrooms. Z House can accommodate up to four residents at any time. The normal staffing ratio during the day amounts to two staff for all four residents. In addition, however, P receives additional one-to-one close personal supervision during the daytime. P continues to attend the day centre five days a week, leaving Z House at 9.30 in the morning and returning at 5.00 in the evening. Until recently, P did not receive one-to-one supervision at the day centre but, following increased concerns about managing risk, that level of supervision has recently been introduced. At night, there is one “waking” member of staff available at Z House during the night, shared across two adjacent properties. The scheme operates a duty officer system whereby senior support workers are available to give advice to in-house support workers.”[6]Baker J continued (para [6]):
“As a result of his disability, he needs a high level of care. He can move for short distances without support, but in order to mobilise further he requires the use of a wheelchair. His difficulty in mobilising means that he is at risk of falling, particularly in situations where he may find it difficult to maintain his balance. He requires prompting and assistance with all activities of daily living, including mobility, nutrition, eating, personal hygiene and continence.”
He noted (para [8]) that continence management has been a longstanding and significant problem for P:
“P has a long history of pulling at his continence pads and as a result they become shredded and torn. Of greater concern is the fact that P has developed a habit of putting the pieces of padding in his mouth and on occasions ingesting them. On occasions this has included the faecal contents of the pads. In addition to the obvious hygiene risk involved, there is, in P’s case, the added danger of choking.”
[7]He continued (paras [9]-[10]):
“This aspect of P’s behaviour has caused particular difficulty to those entrusted with his care. A variety of techniques have been identified to tackle the problem, including monitoring his behaviour in order to ascertain the risk factors; structured toileting arrangements throughout the day to reduce the need to use pads; positive reinforcement strategies to promote improved behaviour; the use of specialist underwear; continence advice; and verbal redirection techniques. In addition, inevitably, care staff have sometimes had to resort to physical intervention. On occasions, P has “stored” pieces of incontinence pad and faeces in the roof of his mouth. In order to remove this material, two members of staff have had to use what is known as a “finger sweep” method, which I understand to involve inserting a finger into his mouth to check for and remove any such material. According to Miss Whitaker, “the two-to-one staffing is necessary for one person to open P’s fist to hold and clean his hand to prevent him smearing it over himself or others, while the other person takes action to remove and refresh his pad and clothes.”
Miss Whitaker goes on to describe how P will attempt to fight against staff during these interventions. She also states:
“despite implementation of the preventative strategies described, and use of close proximity one-to-one staffing, it is evident that P continues to pull at his continence pads and succeeds in tearing bits off, and accessing its contents, resulting in his putting it in his mouth and ingesting it”
. Recently, as described by Miss Whitaker, the staff at Z House have adopted a new approach, involving P wearing an all in one body suit sewn up at the front, to prevent his hands touching his groin area, the only access being via a zip at the back. To date, this had proved a successful way of managing his behaviour.” In para [11], Baker J described other aspects of P’s challenging behaviour.[8]In the course of the proceedings the local authority produced a detailed care plan for P. It is dated 29 March 2011 and has been approved by Baker J as being in P’s best interests. So far as material for present purposes it identifies five behaviours that P displays: accessing/destroying continence pad, grabbing or smearing the contents (faeces) and placing in his mouth or ingesting it; picking at his skin causing wounds; aggression towards others; banging/slapping his head; reducing co-operation. The care plan then deals with each of these behaviours under a number of headings including: rationale (why intervene?); risk associated with presenting behaviours; frequency; triggers; behaviour intervention plan; behaviour support plan. I need not go through this in detail. A few extracts illustrate the realities of P’s life at Z House and illuminate the nature of the restraints to which he is, on occasion, subject.[9]In relation to the first listed behaviour (the continence pad) the behaviour intervention plan if he has accessed his pad and has it (or faeces) in his hand is to “ask, coax and direct in assisting [him] to change his pad/clothing and freshen up.” If he has placed the pad (or faeces) in his mouth, the plan provides as follows:
“Using protective clothing, one staff member is to hold [his] hands, and ask him to open his mouth; use facial gestures as a prompt (staff to open their mouth). If [he] does not open his mouth; staff to touch [his] chin as a prompt, and repeat facial gesture again as above. If [he] is uncooperative, the second staff member is to open [his] mouth, place 2 fingers inside his mouth and use a sweeping motion across his palette to remove any contents. Staff should then support [him] to go to the bathroom and assist him to change his pad/clothing and freshen up.”
This is plainly the most intrusive of all the techniques used with P.[10]It is not necessary to refer to the plan in respect of the second listed behaviour. In relation to the third listed behaviour (aggression towards others) the behaviour intervention plan is:
“If [he] attempts to throw objects, staff to make his environment safe and remove objects by removing them from the area or safely removing the object from [his] hand. If [he] pushes staff away, move away from him initially, try alternatives in what you want him to do, ie give him time, try other people to support him. It is vital that staff maintain his safety. When [he] grabs out at other service users and staff, staff to ask [him] to “let go”
. This behaviour can be redirected easily. Staff to ask [him] what he wants; he may lead staff to something.” As counsel observed in argument, the technique is one of distraction, not restraint; certainly not the kind of restraint which, for example, is used on occasions in Young Offender Institutions. In relation to the fourth listed behaviour (banging his head) the behaviour intervention plan is:
“If [he] does bang his head, make his environment safe by moving objects. If [he] is leaning against a wall or window and is banging his head, one member of staff to place hand behind his back and gesture him to move away from the wall. If [he] is not happy to move, it is important that staff ensure his safety and two staff then to place hand on his elbow, and place a soft object behind his head until he will move away from the wall. Staff to remain positive with [him] and redirect him onto another more appropriate activity or establish what he is unhappy/anxious about.”
In relation to the fifth listed behaviour (becoming unco-operative) the behaviour intervention plan is:
“If [he] becomes uncooperative and sits down on the floor, if he is safe from any changes, give him time, offer him a chair or his wheelchair. Place this next to him. Maintain close observations. Gesture [him] to stand and verbally encourage him, ie “Come on [name], stand up, do you want a drink?” [He] will eventually stand. Praise [him] for any positive responses, ignore and redirect any negative behaviour. It is vital that his safety is maintained. If [he] is unsafe and is refusing to stand, two staff will need to hold [his] hand on either side and support him to stand, or move to a chair/wheelchair.”
Again, as will be noted, the emphasis is on preventing P harming himself.[11]Two other documented aspects of P’s regime to which our attention was drawn are that, in addition to going to the day centre, P’s evenings involve such activities such as going swimming, going to a club and going to a local pub for a curry night. Importantly, as is also documented, although P cannot leave Z House without a member of staff accompanying him, he has 98 hours a week of 1:1 staff support to facilitate this “whenever he chooses.”[12]Finally, it is to be noted that P’s mother in a witness statement that was before the judge acknowledges that P needs a level of care that she can no longer provide for him at home. She says that for that reason she is satisfied that he has been taken into care by the local authority.

The Convention

[13]In the light of the submissions we have heard it is appropriate to set out Article 5 in full:
“1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority: (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2 Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him. 3 Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”
[14]I should also set out Article 2 of Protocol 4, even though it is not binding on the United Kingdom:
“1 Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2 Everyone shall be free to leave any country, including his own. 3 No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4 The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
I should point out that “ordre public”, the expression used even in the English text of Article 2(3), is a term of art in French law having a considerably wider meaning than the English words “public order.”[15]We were taken, as was the judge, to various decisions both of the Strasbourg court and of our domestic courts. They fall into four groups: i) First, there are the two foundational decisions of the Strasbourg court: Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647 and Guzzardi v Italy (1981) 3 EHRR 333. ii) Second, there are the domestic decisions in the control order and police crowd control ‘kettling’ cases: Secretary of State for the Home Department v JJ and others [2007] UKHL 45, [2008] 1 AC 385, Secretary of State for the Home Department v E and another [2007] EWCA Civ 459, [2007] UKHL 47, [2008] 1 AC 499, Austin and another v Commissioner of Police of the Metropolis [2007] EWCA Civ 980, [2008] QB 660, on appeal [2009] UKHL 5, [2009] 1 AC 564, and Secretary of State for the Home Department v AP [2010] UKSC 24, [2011] 2 AC 1. iii) Third, there are the Strasbourg mental health and community care cases: Ashingdane v United Kingdom (1985) 7 EHRR 528, Nielsen v Denmark (1989) 11 EHRR 175, HM v Switzerland (2002) 38 EHRR 314, HL v United Kingdom (2004) 40 EHRR 761, and Storck v Germany (2005) 43 EHRR 96. iv) Finally, there are the domestic community care cases: DE v JE and Surrey County Council [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, LLBC v TG, JG and KR [2007] EWHC 2640, [2009] 1 FLR 414, G v E, A Local Authority and F [2010] EWHC 621 (Fam), [2010] 2 FLR 294, appeal dismissed G v E (By his litigation friend the Official Solicitor) [2010] EWCA Civ 822, [2011] 1 FLR 239, Re MIG and MEG [2010] EWHC 785 (Fam), [2010] COPLR Con Vol xxx, appeal dismissed P and Q v Surrey County Council [2011] EWCA Civ 190, [2011] 2 FLR 583, and Re A and C (Equality and Human Rights Commission Intervening) [2010] EWHC 978 (Fam), [2010] 2 FLR 1363. To this list I should add Re RK (Minor: Deprivation of Liberty) [2010] EWHC 3355 (COP), [2010] COPLR Con Vol xxx, C (By his litigation friend the Official Solicitor) v A Local Authority and LM, LPM, The PCT and an Organisation (Interested Parties) [2011] EWHC 1539 (Admin), (2011) 14 CCCL 471, and London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP).[16]In para [46] of his judgment Baker J said this:
“In determining whether P is being deprived of his liberty, the court must follow the following legal principles. (1) Section 64(5) of the 2005 Act provides that references to “deprivation of liberty” in the Act have the same meaning as in Article 5(1) of ECHR. Any analysis of whether P has been in fact deprived of his liberty must therefore have close regard to the jurisprudence of both the English courts and the European Court on the interpretation of that Article. (2) That jurisprudence makes clear that, when determining whether there is a “deprivation of liberty” within the meaning of Article 5, three conditions must be satisfied, namely (a) an objective element of a person’s confinement in a particular restricted space for a not negligible time; (b) a subjective element, namely that the person has not validly consented to the confinement in question, and (c) the deprivation of liberty must be one for which the State is responsible: see Storck v Germany and JE v DE and Surrey CC. (3) When considering the objective element, the starting point is to examine the concrete situation of the individual concerned, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. (4) The distinction between a deprivation of, and a restriction of, liberty is merely one of degree or intensity and not one of nature or substance: Guzzardi v Italy …, Storck v Germany. (5) A key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the person’s care and movements: HL v United Kingdom. (6) So far as the subjective element is concerned, whilst there is no deprivation of liberty if a person gives a valid consent to their confinement, such consent can only be valid if the person has capacity to give it: Storck v Germany. (7) So far as the third element is concerned, regardless of whether the confinement is effected by a private individual or institution, it is necessary to show that it is imputable to the State. This may happen by the direct involvement of public authorities or by order of the court”
. So far as it goes, this summary of the jurisprudence, rightly in my judgment, is not challenged either by Ms Jenni Richards QC on behalf of the local authority or by Mr Richard Gordon QC on behalf of P. Mr Gordon helpfully points out, however, with reference to (2)(a) that the actual phrase used by the Strasbourg court in Storck (at para [74]) is confinement “to a certain limited place” rather than “in a particular restricted space.”[17]At para [53] the judge recorded it as being common ground that the second and third conditions for the circumstances to amount to a deprivation of liberty are satisfied. The subjective element is satisfied because P lacks the capacity to give his consent, and the State is responsible, as both the local authority and the court are engaged in determining where he should live. The question in dispute, accordingly, was (and is) whether his circumstances objectively amount to a deprivation of liberty.[18]The shape of the argument before the judge on this issue appears from the various factors identified by counsel for the local authority as indicating that, although his liberty is being restricted, P is not deprived of his liberty, and the corresponding list of factors relied on in support of the contrary contention by counsel on behalf of P.[19]The local authority pointed to the following (para [54]):
“(1) P’s move to Z House was planned carefully and conscientiously. No force, threats, sedation or subterfuge were involved. (2) Z House is a large and spacious bungalow. (3) P has his own room, which has been personalised and is equipped with his possessions such as his own music system. Occupational therapy ensures that P’s accommodation is as homely as possible. (4) P has shared use of communal space and free access to the entire building. P and the three other residents often sit and eat together. There is a garden which P can use whenever he likes. (5) Z House is situated close to P’s family so they can visit regularly. Contact with his family is encouraged. (6) P is sociable and has the opportunity to mix with staff and other residents. (7) The external doors of the property are unlocked during the day but locked at night for security reasons. (8) P has never attempted to leave the property. (9) P needs prompting and assistance with all activities of daily living, including nutrition, mobility, personal hygiene and continence. He requires 1:1 close personal supervision with self-care and sometimes 2:1 care to help with his continence problems. (10) The 98 hours of extra care and support provided to him promote his freedom of movement. (11) He attends a day centre Monday to Friday, leaving Z House at about 9.30 and returning about 5 pm. (12) He takes part in other activities such as pub lunches, visits to the park and garden centres. He enjoys going out into the community. On these occasions, 1:1 support is provided because P has no concept of danger. (13) His behaviour is not controlled by medication.”
All this, said the local authority, amounts to the most normal life possible for P. Much the same argument was repeated before us.[20]As against this P’s counsel pointed to the following (para [56]):
“(1) Every aspect of P’s life is monitored and supervised by those working for the local authority. There is complete and effective control over his care and movements. (2) P is obliged to live at Z House. He cannot return to M’s care, nor move anywhere else. (3) He is unable to leave the premises unescorted. (4) He has little privacy within Z House. Every aspect of his personal care is supported by staff. (5) Z House records show that his behaviour is challenging and requires management. A wide range of measures is used for that purpose. (6) Some of his behaviour is extremely challenging and needs urgent intervention, including on occasions physical restraint. (7) In particular, his tendency to self-harm may require physical intervention. On occasions he can assault others unless restrained. In the community, he is often restrained in a wheelchair by a strap. (8) Furthermore, his tendency to tear off his continence pads and ingest bits of padding and the contents requires a range of measures, including the wearing of a bodysuit that restricts his freedom, and on occasions, in his own interests, intrusive physical interventions, which can include having his arms held by one member of staff whilst a second inserts a gloved finger into his mouth to forcibly remove any retained material. (9) The use of restraint is part of his care package. The local authority has been prompted in the course of this case to introduce a new policy which clarifies and articulates the circumstances in which restraint may be used.”
[21]Baker J’s reasoning, leading to his conclusion that P is being deprived of his liberty, is set out in a passage (paras [58]-[61]) that I should quote almost in full:
“Clearly, the local authority and those who work at Z House have taken very great care to ensure that P’s life is as normal as possible. There are a number of features that, by themselves, might suggest that this is not a case where he was being deprived of his liberty. The type of accommodation is characteristic of the type identified by Wilson LJ in P and Q v Surrey CC as being not designed for compulsory detention. P has regular contact with his family. He attends a day centre five days a week, and enjoys a good social life with other residents and staff and in the community. All these features help to give his life a strong degree of normality. On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at times physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained. In my judgment, the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty. … I make it clear that, in reaching that finding, I am not being critical of the local authority or the staff at Z House. In my judgment, it is almost inevitable that, even after he has been supplied with a bodysuit, P will on occasions gain access to his pads and seek to ingest pieces of padding and faeces in a manner that will call for urgent and firm intervention. Those actions will be in his best interests and therefore justifiable, but they will, as a matter of concrete fact and legal principle, involve a deprivation of his liberty.”

The ambit of Article 5

[22]Examining the language and structure of Article 5, and comparing it with Article 2 of Protocol 4, four things are apparent.[23]The first point is that to be “deprived of liberty” as that expression is used in Article 5 is to be distinguished from being “restricted” in “liberty of movement” as that expression is used in Article 2 of Protocol 4. As the Strasbourg court said in Guzzardi v Italy (1981) 3 EHRR 333 para [92], repeating what it had earlier said in Engel and Others v The Netherlands (No 1) (1976) I EHRR 647 para [58], Article 5 “is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No 4.” In the same way, to be “deprived of liberty” as that expression is used in Article 5 is to be distinguished from being “restricted” in “freedom to choose [one’s] residence” as that expression is used in Article 2 of Protocol 4. Hence, as Baroness Hale of Richmond said in Secretary of State for the Home Department v JJ and others [2007] UKHL 45, [2008] 1 AC 385, para [57], “merely being required to live at a particular address ... does not, without more, amount to a derivation of liberty.” Similarly, restraint must be distinguished from deprivation of liberty. In extreme cases, no doubt, restraint may be so pervasive as to constitute a deprivation of liberty, but restraint by itself is not deprivation of liberty. In short, as Lord Hope of Craighead said in Austin and another v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 AC 564, para [15], Article 2 of Protocol 4 helps to put the ambit of Article 5 in its proper perspective.[24]The second point is that Article 5 distinguishes between those deprivations of liberty which involve a breach of Article 5 in all circumstances and those deprivations of liberty, defined in paragraphs 1(a)-(f), which, subject to compliance with the other requirements of Article 5, are capable of being lawful. Paragraphs 1(a)-(f) exhaustively list the circumstances in which the State has the right to arrest or detain individuals and these paragraphs are to be narrowly interpreted: Austin and another v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 AC 564, para [13]. As Mr Gordon pointed out, many of the authorities to which we were taken concerned cases in the former category. Thus in Guzzardi, where the relegation of a suspected Mafioso to a limited area of a small island was held to constitute a deprivation of liberty, the Strasbourg court went on to hold (paras [96]-[103]) that it could not be justified under any of paragraphs 1(a)-(f). Likewise, as Lord Neuberger of Abbotsbury pointed out in Austin, para [64], in the case of crowd control measures (‘kettling’) undertaken by the police to preserve public order. And so too in the ‘control order’ cases: see Lord Brown of Eaton-under-Heywood in Secretary of State for the Home Department v JJ and others [2007] UKHL 45, [2008] 1 AC 385, para [90].[25]The third point to be noted is the comparatively limited ambit of the exceptions recognised in paragraphs 1(a)-(f). Apart from the fairly obvious exceptions listed in paragraphs (a)-(c) and (f), the only circumstances in which a deprivation of liberty is capable of being justified are in relation to children (and even then only in the very limited circumstances referred to in paragraph 1(d)) or in relation to those described in paragraph 1(e) as “persons of unsound mind, alcoholics or drug addicts, or vagrants” or, as also permitted by paragraph 1(e), where detention is “for the prevention of the spreading of infectious diseases.” There is nothing in Article 5 comparable with the potential justifications under Article 2(3) of Protocol 4, where restrictions, in accordance with law and necessary in a democratic society, may be imposed “in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”[26]Putting the same point the other way round, it is revealing to note what is not included in paragraphs 1(a)-(f). Whatever their country’s particular historical experiences, the framers of the Convention can hardly have forgotten the problem of public disorder or intended to deny the authorities the conventional means of coping with it. Yet it finds no reference in Article 5. The conclusion can only be that the framers did not see the exercise of police power in such circumstances as involving deprivation as opposed to restriction of liberty. On the contrary, it might be thought, the language of Article 2(3) of Protocol 4 suggests that it is in Article 2 that the relevant protections in this context are primarily to be found.[27]The drafting of paragraph 1(d) is also striking for what it does not say. A child can lawfully be deprived of his liberty only “for the purpose of educational supervision” or “for the purpose of bringing him before the competent legal authority.” The framers of the Convention must have had very clearly in mind the close and pervasive supervision and control exercised by parents, at least in relation to children who have not reached the age of discretion, yet it finds no reference in Article 5. The conclusion must surely be that the framers did not see the exercise of such parental powers as involving deprivation of liberty. I must return to this point, which seems to me to lie at or near the heart of the issues we have to grapple with. For the time being, and to anticipate, I merely observe that I cannot accept that the framers saw the solution as lying merely in the parental power to consent to that which, absent such consent, would be unlawful or in the fact that many domestic situations simply do not involve the State at all.[28]All this suggests a wider point, that in construing Article 5 it may be useful to have regard not merely to the specific cases referred to in paragraphs 1(a)-(f) but also to situations which are not included there.[29]The fourth point is that whereas paragraphs 1(a)-(f) by and large permit arrest or detention in circumstances where the public interest or the interests of other people are engaged, paragraphs 1(d) and 1(e), at least in part, contemplate the legitimacy of detention exclusively in the interests of the person being detained.[30]Mr Gordon, drawing attention to these features of Article 5, submits that cases such as Guzzardi and, more particularly, the control order or ‘kettling’ cases are distinguishable, indeed are simply not relevant, when it comes to considering whether or not there has been a deprivation of liberty in a case such as this, where the focus is, ultimately, on Article 5(1)(e). With all respect to Mr Gordon’s ingenious argument it cannot be right.[31]In the first place, it is inconsistent with the structure and language of Article 5(1). Article 5 imposes an absolute prohibition on all forms of deprivation of liberty subject only to the cases listed in paragraphs 1(a)-(f). One only gets into a consideration whether any of those sub-paragraphs applies if it has first been determined that there is a deprivation of liberty; otherwise the question does not arise. So the first and fundamental question is simply: has the claimant been “deprived of liberty” as that expression is used in the opening words of Article 5? Second, Mr Gordon’s approach finds no support that he was able to direct us to and none that I am aware of, either in the Strasbourg or in our domestic jurisprudence. This leads on to the third point. Not merely is his approach unsupported by, it is in my judgment contradicted by, the case-law. Exhaustive citation of authority is unnecessary. The point can be illustrated by the extended reference in both the control order and `kettling’ cases to the case-law engaging Article 5(l)(e): see, for example, Secretary of State for the Home Department v JJ and others [2007] UKHL 45, [2008] 1 AC 385, paras [15] and [58], and Austin and another v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 AC 564, paras [21] and [44]. And the contrary is also clear: the Article 5(1)(e) cases, both here and at Strasbourg, are replete with references to cases such as Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647 and Guzzardi v Italy (1981) 3 EHRR 333. As Lord Brown of Eaton-under-Heywood said in JJ at para [107], “The borderline between deprivation of liberty and restriction of liberty of movement cannot vary according to the particular interests sought to be served by the restraints imposed.”

Deprivation of liberty: some basic principles

[32]As the Strasbourg court said in Guzzardi v Italy (1981) 3 EHRR 333 paras [92]-[93], repeating what it had earlier said in Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647 paras [58]-[59], “… in proclaiming the “right to liberty”, paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion … the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No 4 ... In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question ... The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends.”[33]The approach set out in Guzzardi has been consistently applied by the Strasbourg court, and in many different contexts, including the one with which we are here concerned.

(e) case, the court repeated (para [42]) that:

“In order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question.”
[34]In short, the context is crucial. I should add that in Secretary of State for the Home Department v AP [2010] UKSC 24, [2011] 2 AC 1, para [12], a control order case, it was held that a restriction on the applicant’s Article 8 rights is a relevant consideration in determining whether a control order breaches Article 5 and is therefore capable of being a decisive factor, capable of tipping the balance.[35]Typically, no one factor is likely to be determinative. As Lord Bingham of Cornhill observed in Secretary of State for the Home Department v JJ and others [2007] UKHL 45, [2008] 1 AC 385, para [16], “there may be no deprivation of liberty if a single feature of an individual’s situation is taken on its own but the combination of measures considered together may have that result.” So, he continued, “account must be taken of an individual’s whole situation”.[36]On the other hand, as he explained in Secretary of State for the Home Department v E and another [2007] UKHL 47, [2008] 1 AC 499, para [11], matters which were not irrelevant “could not of themselves effect a deprivation of liberty if the core element of confinement, to which other restrictions (important as they may be in some cases) ancillary, is insufficiently stringent.” A similar point was made by Lord Hope of Craighead in Austin and another v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 AC 564, when he said (para [18]):
“Except in the paradigm case of close confinement in a prison cell, where there is no room for argument, the absolute nature of the right [under Article 5] requires a more exacting examination of the relevant criteria. There is a threshold that must be crossed before this can be held to amount to a breach of article 5(1). Whether it has been crossed must be measured by the degree or intensity of the restriction.”
[37]There is a further point I should make at this stage. Neither the presence nor the absence of a lock is determinative. As the Strasbourg court made clear in HL v United Kingdom (2004) 40 EHRR 761 at para [92], whether a patient is kept in ‘locked’ or ‘open’ conditions is not determinative. And as I observed in DE v JE and Surrey County Council [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, paras [116], [118], a person can be deprived of his liberty even though, as in the case of a prisoner detained in an open prison, his departure is not prevented by a locked door or by any other physical barrier and even though he may be allowed extensive social and other contact with the outside world, for example by being allowed from time to time to leave the prison unsupervised. A Category A prisoner detained in a maximum-security closed prison and a Category C prisoner detained in an open prison are both equally deprived of their liberty, even though there may be nothing more keeping the Category C prisoner in than a rule that he must not pass beyond a line drawn on a plan, a notice attached to a tree warning him that he must go no further and the threat of recapture if he leaves without permission.

Deprivation of liberty: context and comparator

[38]The emphasis upon the concrete situation, the context, is obviously important but in truth it does little more than describe a forensic process. Reference to the degree and intensity of the restriction no doubt gives some indication of the principle in play but it hardly provides a benchmark or yardstick by which to evaluate the circumstances and assess whether or not there is a deprivation of liberty. And the call to examine the facts can too easily lead to the worrying and ultimately stultifying conclusion that the decision in every case can safely be arrived at only after a minute examination of all the facts in enormous detail.[39]This cannot be right. There must be something more which enables us to pursue a more focussed and less time-consuming enquiry. In my judgment there is. The task is to identify what it is we are comparing X’s concrete situation with. In short, what is the relevant comparator?[40]The unspoken assumption most of the time, I suspect, is that the relevant comparator is the ordinary adult enjoying what the Supreme Court of the United States described in a habeas corpus case, Jones v Cunningham (1963) 371 US 236, 243, as “liberty to do those things which in this country free men are entitled to do.” This is, for example, the comparator which appropriately we see being used in the control order cases. And in many, no doubt most, contexts this is the appropriate comparator. But not in all. And particularly not, in my judgment, in the kind of cases that come before the Court of Protection, such as the one before us.

Deprivation of liberty: the domestic context

[41]At this point it may be useful to consider two very mundane but nonetheless illuminating examples.[42]If, perish the thought, Mr Gordon were to find himself locked in a police cell for three hours, he would indubitably be deprived of his liberty. That unhappy state of affairs might be lawful in accordance with Article 5(1)(c), but that is not the point. Article 5 would certainly be engaged. But suppose that a one year old child is placed for three hours in a playpen, behind bars (albeit of wood rather than steel) and in a space proportionately even smaller than the police cell. The idea that Article 5 could be engaged, the idea that the child is being deprived of her liberty, is preposterous. And the argument that what avoids this absurdity is the fact that in the latter case, unlike the former, parental rights are in play and the State is not involved, is no answer.[43]Suppose that there are two children of the same age in the playpen, one the mother’s own daughter, Lucinda, the other, Lucy, a girl placed in her care by the local authority as a foster child in accordance with the provisions of the Children Act 1989. In relation to Lucinda the mother has parental responsibility as defined in section 3(1) of the Act. In relation to Lucy she does not have parental responsibility, only the much more restricted powers conferred by section 3(5). The local authority is responsible for Lucy’s placement with the mother but has no responsibility at all for Lucinda. It would surely be absurd to suggest that Article 5 is engaged in Lucy’s case but not in Lucinda’s, let alone to suggest that Lucy is being deprived of her liberty while Lucinda is not.[44]Or take the facts of the well-known case of R v Jackson [1891] 1 QB 671. Mr Jackson’s wife declined to live with her husband. He obtained a decree for restitution of conjugal rights which his wife refused to obey. Prior to the enactment of the Matrimonial Causes Act 1884, he could have returned to court and had his wife attached (imprisoned) for contempt. But the court no longer had that power. So he resorted to self-help, seizing his wife as she emerged from church one Sunday morning and carrying her off to the matrimonial home, where he confined her. He gave her the free run of the house but did not allow her to leave. He sought to justify his actions by asserting the right of a husband to confine his wife, seemingly perpetually, until she consents to restore conjugal rights. Unsurprisingly, Mrs Jackson was freed on a habeas corpus. The Court of Appeal (Lord Halsbury LC, Lord Esher MR and Fry LJ) denied that a husband has any such right and held that she had been wrongly imprisoned.[45]Mr Jackson had attempted to distinguish between what he accepted would have been an imprisonment if his wife had been kept shut up in a single room and what he asserted was a mere confinement because she had the run of the house. The Court of Appeal was scornful. The Lord Chancellor observed sarcastically that “I do not know that I can express in sufficiently precise language the distinction which has been suggested” and Lord Esher MR with equal sarcasm confessed that it was “a refinement too great for my intellect.” It may be noted moreover, and the point is of some significance, that the husband sought also to rely, unsuccessfully, upon the fact that, if she had wished, he would have allowed his wife to go out for a drive, albeit only in his charge, an offer he had made several times but which she had declined.[46]Now let us suppose that a regime like that imposed by Mr Jackson was to be implemented by a husband after many years of happy marriage because, and only because, his wife is suffering from dementia, cannot safely be allowed out of the matrimonial home on her own, and may wander out (and possibly be knocked down by a passing motor car) unless the front door is locked. Surely it cannot sensibly be argued that the wife is being deprived of her liberty. Nor can the point be evaded by demonstrating that, in the example given, the State is not involved. It cannot make any difference for the purposes of the present point whether the regime is implemented by the woman’s husband or, after his death, by a companion employed by her relatives or by a resident home help employed and paid for by the local authority pursuant to its statutory powers. Otherwise the absurd conclusion would seem to be that Article 5 would be engaged, and our elderly patient deprived of her liberty, on those days in the week when she is being looked after by the carer provided by the local authority but not on those days of the week when being looked after by the carer provided by the family.[47]Now what are the differences between the two situations? There are, perhaps, three: reason, purpose and motive. The reason why Mr Jackson acted as he did was because his wife was disobeying the decree for restitution of conjugal rights; the reason why our hypothetical husband is acting in the same way is because his wife has dementia. Mr Jackson’s purpose was to induce his wife to restore conjugal rights; our hypothetical husband’s purpose is to safeguard and protect his wife against some of the adverse consequences of her dementia. Mr Jackson’s motive was to have his way, to coerce his wife in accordance with what he seems to have conceived to be his rights as a husband and her duties and obligations as a wife; our hypothetical husband’s motive is to further his wife’s best interests, acting out of love and, it may be, his sense of obligation as a husband. I must return to this point in due course.[48]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 (para [28]):
“The children in the present case are not in secure accommodation (whether in the sense in which that expression is used in s 25 of the Children Act 1989 or in any other sense). They are not being detained. They are simply living with foster parents in exactly the same type of domestic setting as any other children of their ages would be, whether living at home with their parents or staying with friends or relatives. Habeas corpus does not lie because a parent, or other person in loco parentis, makes it a rule that a child of tender years is not to leave the house unless accompanied by some suitable person or because an exasperated parent has sent a naughty child to his room and told him to stay there for 2 hours or because a rebellious teenager has been 'grounded' or subjected to a parentally enforced curfew, any more than habeas corpus lies if the headmaster of a boarding school forbids his charges to leave the school premises except at permitted times and for permitted purposes. And it makes no difference for this purpose that the domestic rule is actually enforced by the turning of a key in a lock.”
I need hardly add that, whatever the position in relation to younger children, parents no more have a right to imprison or confine their adult children or subject them to their control, than a husband has a right to imprison, confine or control his wife.[49]Now that, of course, was said in the context of the common law and the tort of false imprisonment. But it seems to me that it has equal application in the context of Article 5.[50]What this shows for present purposes is that even a domestic house may be a prison and even a domestic setting can involve a deprivation of liberty: G v E, A Local Authority and F [2010] EWHC 621 (Fam), [2010] 2 FLR 294, para [117], Re MIG and MEG [2010] EWHC 785 (Fam), [2010] COPLR Con Vol xxx, para [199], Re A and C (Equality and Human Rights Commission Intervening) [2010] EWHC 978 (Fam), [2010] 2 FLR 1363, paras [128]-[131].[51]If R v Jackson [1891] 1 QB 671 is the classic example, one can think of others. Baker J in G v E referred (para [117]) to the first Mrs Rochester in ‘Jane Eyre’. In A and C (para 130) I observed that:
“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.”
[52]But, acknowledging all that, as I went on to say (para [131]):
“the fact that a domestic setting can involve a deprivation of liberty does not, of course, mean that it very often will. And typically in the kind of context with which I am here concerned – care of children or vulnerable adults by their parents in the family home – there will not, in my judgment, be any deprivation of liberty, whether that phrase is used in the Article 5 sense or in the context of the common law tort and crime of false imprisonment.”
Baker J had earlier made the same point in G v E (para [117]). Subsequently, in this court, Wilson LJ has said the same: P and Q v Surrey County Council [2011] EWCA Civ 190, [2011] 2 FLR 583, para [28].[53]I shall return to the significance of all this in due course, but there are two further points to be made at this stage. The first relates to the concept of someone being ‘required’ to live in a particular place. It is important to recognise that this expression may be used in different senses and with, potentially, very significantly different implications.[54]There are many people who are ‘required’ to live somewhere in the sense that they have nowhere to go other than the accommodation provided for them by another. As Lloyd LJ pointed out during the course of argument, a person dependent upon public housing and given no choice in the matter by the local authority is, in one sense of the expression, required to live where the local authority decides and in the social housing provided for him. But it would be absurd to say that Article 5 is engaged in such a case or that such a person is being deprived of his liberty.[55]As late as 1969 one could still find traces in the case-law of the old doctrine that the husband, as the head of the household, had the right to determine where the matrimonial home was to be, that the wife was under the “necessity” of living there with him, and that if she refused she was guilty of the matrimonial offence of desertion: see Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, para [126]. Yet it would have been absurd to say that Article 5 was engaged in such a case or that such a wife was being deprived of her liberty.[56]Likewise, in a somewhat similar sense of the expression, a child under the age of discretion is required to live with his parents and where they decide. That, of course, does not involve the State, but the same point can surely be made in the case of a child placed by a local authority with foster carers pursuant to statutory powers. It would be absurd to say that Article 5 is engaged in such a case or that such a child is being deprived of her liberty merely because of the foster placement. As Parker J acutely pointed out in Re MIG and MEG [2010] EWHC 785 (Fam), [2010] COPLR Con Vol xxx, para [202]:
“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.”
[57]So too, the wife with dementia living at home with her husband, is, in this sense, required to live with him and where he decides. But it would be absurd to say that she is being deprived of her liberty. And it can make no difference that the husband has moved with his wife to another house after the onset of her dementia. Nor can it make any difference that the accommodation is being provided by a local authority in accordance with its statutory powers.[58]Matters are, of course, very different where a person has somewhere else to go and wants to live there but is prevented from doing so by a coercive exercise of public authority, as was the case, for example, in HL v United Kingdom (2004) 40 EHRR 761, in DE v JE and Surrey County Council [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, and most recently in London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP).[59]The other point relates to the argument presented to Baker J in G v E that E’s degree of disability and lack of capacity was such that any placement would require a deprivation of liberty. Baker J did not have to decide the point but was rightly very sceptical. The same point arose in Re MIG and MEG where Parker J said (para [203]):
“I do not accept that mere placement in a residential or domestic setting can be construed as creating confinement of itself just because the person cannot legally decide whether to remain there or not. In my judgment, if a person is living what is for them a normal life in a family home, and would not be living any different life in any other setting including in their own family home, then it is very difficult to see how they can objectively be confined, simply because they lack the capacity to consent to that placement.”
She repeated (paras [223]-[224]) that mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty, adding that “if mere lack of capacity to consent were enough then all such persons placed by a Local Authority would be considered to be deprived of their liberty.” I agree with Parker J. Both her reasoning and her conclusion are unassailable.

Deprivation of liberty: purpose, motive and intention

[60]Appropriately in a case such as this, much of the debate before us focussed on two related questions: one concerns the relevance (if any) of such concepts as purpose, motive and intention; the other the concept of normality, or relative normality.[61]Turning first to purpose, motive and intention, the inevitable starting point must be Austin and another v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 AC 564, where the House of Lords grappled for the first time with what Lord Hope of Craighead (para [22]) said was a fundamental issue of principle:
“Is it relevant, when considering whether a case falls within the ambit of article 5(1), to have regard to the purpose for which a person’s freedom of movement has been restricted? If so, in what kinds of cases can this be relevant? And, if the purpose of the restriction is relevant, what conditions must it satisfy to avoid being proscribed by the article?”
He also formulated the question (para [26]) as being “the extent to which regard can be had to the aim or purpose of the measure in question when consideration is being given as to whether it is within the ambit of article 5(1) at all.”[62]Lord Hope’s “very guarded” conclusion (as Lord Walker of Gestingthorpe characterised it at para [43]) was (para [34]) that “there is room, even in the case of fundamental rights as to whose application no restriction or limitation is permitted by the Convention, for a pragmatic approach to be taken which takes full account of all the circumstances.”[63]Various different expressions were used, and not necessarily always in the same sense by their Lordships. Lord Hope of Craighead, as we have seen, referred to “the purpose” and “the aim.” Lord Scott of Foscote (para [39]) referred to “the purpose of the confinement or restriction and the intentions of the persons responsible for imposing it”, seemingly distinguishing between the two. And both Lord Hope of Craighead and Lord Neuberger of Abbotsbury treated the public authority’s state of mind as being relevant.[64]As Lord Hope put it (para [33]), “measures of crowd control which involve a restriction on liberty, if they are not to be held to be arbitrary, must be carried out in good faith and should not exceed the length that is reasonably required for the purpose for which the measure was undertaken.” Likewise Lord Neuberger (para [63]) said that:
“the intention of the police is relevant, particularly in a non-paradigm case, such as this, and where the intention is manifest from the external circumstances. If it transpired, for instance that the police had maintained the cordon, beyond the time necessary for crowd control, in order to punish, or “to teach a lesson” to, the demonstrators within the cordon, then it seems to me that very different considerations would arise. In such circumstances, I would have thought that there would have been a powerful argument for saying that the maintenance of the cordon did amount to a detention within the meaning of article 5.”
[65]In the course of what Wilson LJ (as he then was) justly described in this court as her “magisterial analysis” in Re MIG and MEG [2010] EWHC 785 (Fam), [2010] COPLR Con Vol xxx, Parker J appropriately paid close attention to what their Lordships had said in Austin and in particular to the speech of Lord Walker of Gestingthorpe.[66]Referring to the passage in HM v Switzerland (2002) 38 EHRR 314, para [42], which I have already set out, Lord Walker commented (para [43]) that “It is noteworthy that the listed factors, wide as they are, do not include purpose.” He continued (para [44], citations omitted):
“The purpose of confinement which may arguably amount to deprivation of liberty is in general relevant, not to whether the threshold is crossed, but to whether that confinement can be justified under article 5(1)(a) to (f) … If confinement amounting to deprivation of liberty and personal security is established, good intentions cannot make up for any deficiencies in justification of the confinement under one of the exceptions listed in article 5(1)(a) to (f), which are to be strictly construed.”
[67]Having expressed some unease about part of the reasoning in Nielsen v Denmark (1988) 11 EHRR 175 and about the decision in X v Federal Republic of Germany (1981) 24 DR 158, he continued (para [47]):
“Having said all that, however, I conclude that it is essential, in the present case, to pose the simple question: what were the police doing at Oxford Circus on 1 May 2001? What were they about? The answer is, as Lord Hope has explained in his full summary of the judge’s unchallenged findings, that they were engaged in an unusually difficult exercise in crowd control, in order to avoid personal injuries and damage to property. The senior officers conducting the operations were determined to avoid a fatality such as occurred in Red Lion Square on 15 June 1974. The aim of the police was to disperse the crowd, and the fact that the achievement of that aim took much longer than they expected was due to circumstances beyond their control.”
[68]Parker J distinguished between purpose and reason. There are two particularly illuminating passages in her judgment. In the first (para [164]) she said:
“I treat with extreme caution the suggestion that purpose is relevant in this type of case, save that it does seem to me to be realistic to put into the equation when trying to discern the factual matrix and whether these girls are objectively deprived of their liberty, that both girls were placed in their respective placements as children in need, because they need homes, rather than because they require restraint, or treatment. It is also relevant in my view to consider the reasons why they are under continuous supervision and control.”
In the second (para [230]) she said this:
“I agree that it is impermissible for me to consider whether, if either is objectively detained or confined, this is with good or benign intentions or in their best interests. But notwithstanding that, as was observed by Lord Walker in Austin, “purpose” does not figure in the list of factors to be evaluated in determining the concrete situation of the person concerned, I am of the view that in this case it is permissible to look at the “reasons” why they are each living where they are. In the case of each there are overwhelming welfare grounds for them not to live in their family of origin. In relation to both girls, the primary intention is to provide them each with a home. Within those homes, they are not objectively deprived of their liberty. In neither of those homes are they there principally for the purpose of being “treated and managed”
. They are there to receive care.”[69]In this court, Wilson LJ (P and Q v Surrey County Council [2011] EWCA Civ 190, [2011] 2 FLR 583, para [27]) criticised the latter passage, but only insofar as Parker J “was there attaching significance to the fact that the purpose of the arrangements for the girls was to further their best interests.”[70]I have deliberately dealt with the point at some length, both because the underlying issue is one of considerable importance and because it is important to be clear as to what their Lordships were and were not saying in Austin. Two things, in my judgment, emerge.[71]In the first place, it is clear that when using the word “purpose” their focus was not on the subjective, they were not referring to motives or intentions. “Purpose” is here being used in the sense of the objective “aim”, to use Lord Hope’s word. And the role of “intention” is limited. What was being emphasised is that bad faith, deception, improper motives or other forms of arbitrary behaviour may have the effect that what would otherwise not be a deprivation of liberty is in fact, and for that very reason, a deprivation. This is a very different proposition from some general suggestion that good intentions can render innocuous what would otherwise be a deprivation of liberty. And for that proposition there is, in my judgment, no support at all in anything said in Austin.[72]In the course of his dissenting opinion in HM v Switzerland (2002) 38 EHRR 314, the point was powerfully made by

Judge Loucaides:

“the question whether a measure amounts to a deprivation of liberty does not depend on whether it is intended to serve or actually serves the interests of the person concerned. This is illustrated by De Wilde, Ooms and Versyp v Belgium (1971) 1 EHRR 373 and the examples of minors and persons of unsound mind requiring educational supervision, whose detention is expressly justified under the provisions of Article 5(1)(d) and (e) on the premise that their case concerns “deprivation of liberty”, even though such detention may be exclusively in the detainees’ interests.”
[73]In DE v JE and Surrey County Council [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, paras [46]-[47], I agreed:
“I have great difficulty in seeing how the question of whether a particular measure amounts to a deprivation of liberty can depend on whether it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse what I should have thought are, both as a matter of logic and as a matter of legal principle, two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified? The argument, if taken to its logical conclusion, would seem to lead to the absurd conclusion that a lunatic locked up indefinitely for his own good is not being deprived of his liberty. And if beneficent purpose cannot deprive what is manifestly a deprivation of liberty of its character as such, why should a beneficent purpose be of assistance in determining whether some more marginal state of affairs does or does not amount to a deprivation of liberty? No doubt it is some imperfection in my understanding or reasoning, but I confess to having great difficulty in identifying any satisfactory answer to the point made so convincingly by Judge Loucaides.”
I remain of that view.[74]I am reinforced in this conclusion by what this court has very recently said in P and Q v Surrey County Council [2011] EWCA Civ 190, [2011] 2 FLR 583. I have already referred to what Wilson LJ said, in a judgment with which, on this point, both Smith LJ and Mummery LJ agreed. Mummery LJ accepted (paras [50]-[51]) that what he called “the benign nature of the reasons for the placements” was “legally irrelevant” and stressed (paras [47], [52]) the need to distinguish between (and not to confuse) matters which affect whether a deprivation of liberty is lawful with whether it exists at all. Smith LJ stressed (paras [39], [40]) that the test of whether someone is deprived of their liberty is “objective”.[75]Earlier on, I distinguished between three things, reason, purpose and motive, explaining what I meant by reference to the facts of R v Jackson [1891] 1 QB 671 and the facts of the hypothetical case with which I contrasted it. “Reason”, in the sense in which I have used it, accords with Parker J’s use of the same word in Re MIG and MEG. “Purpose”, in the sense in which I have used it, accords with their Lordships’ use of the same word in Austin, referring to the “aim”. In this context, properly used and properly understood, both “reason” and “purpose” (or, synonymously, “aim”) are objective. They are to be contrasted with the subjective sense in which, in this context, words such as “motive” and “intention” tend to be used.[76]When used in these senses, it is legitimate, in my judgment, in determining whether or not there is a deprivation of liberty, to have regard both to the objective “reason” why someone is placed and treated as they are and also to the objective “purpose” (or “aim”) of the placement. Subjective motives or intentions, on the other hand, are relevant only in the limited circumstances contemplated in Austin. An improper motive or intention may have the effect that what would otherwise not be is in fact, and for that very reason, a deprivation of liberty. But a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty. Putting the same point another way, good intentions are essentially neutral. At most they merely negative the existence of some improper motive or intention. That is all.[77]I can illustrate the point by returning to the example of the wife suffering from dementia. I suggested that the reason why our hypothetical husband was implementing the regime I described was because his wife has dementia, that his purpose was to safeguard and protect his wife against some of the adverse consequences of her dementia, and that his motive was to further his wife’s best interests, acting out of love and, it may be, his sense of obligation as a husband. Applying the foregoing analysis, both the reason and the purpose are relevant to the question of whether there is any deprivation of liberty. The husband’s beneficent motive, on the other hand, is relevant only because it negatives the existence of any improper purpose or any malign, base or improper motive – for example, a desire to punish or humiliate or to avoid shame or embarrassment – that might, if present, turn what would otherwise be innocuous into a deprivation of liberty.

Deprivation of liberty: normality and relative normality

[78]Turning next to the question of normality, this was an issue considered very recently by this court in P and Q v Surrey County Council [2011] EWCA Civ 190, [2011] 2 FLR 583. However, before considering that case it may be useful to go back to first principles.[79]I can start with Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, where the Strasbourg court was concerned with the question of whether various penalties imposed upon serving soldiers for offences against military discipline meant that they were “deprived of liberty.” It said (para [54]) that “when interpreting and applying the rules of the Convention in the present case, the court must bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces”, adding (para [59]) that “rather wide limitations upon the freedom of movement of the members of the armed forces are entailed by reason of the specific demands of military service so that the normal restrictions accompanying it do not come within the ambit of Article 5 either.”[80]It followed, and this is crucial, that (para [59]):
“A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman. Nevertheless, such penalty or measure does not escape the terms of Article 5 when it takes the form of restrictions that clearly deviate from the normal conditions of life within the armed forces of the Contracting States.”
Certain forms of punishment were, on the facts of the case, held to involve deprivation of liberty within the meaning of Article 5. Others were not, because (para [61]) “They” — the applicants — “remain, more or less, within the ordinary framework of their army life.”[81]Putting the point in more general terms, when considering whether or not some disciplinary measure imposed on a soldier involves a deprivation of liberty, the relevant comparator is not a civilian but another soldier who is not subject to that measure.[82]In Secretary of State for the Home Department v JJ and others [2007] UKHL 45, [2008] 1 AC 385, Lord Bingham of Cornhill, referring to Engel identified the “guiding principle” (para [15]), as being that:
“the task of a court is to assess the impact of the measures in question on a person in the situation of the person subject to them.”
He added (para [18]), again referring to Engel:
“in assessing the impact of the measures in question on a person in the situation of the person subject to them, the court has assessed the effect of the measures on the life the person would have been living otherwise. Thus no deprivation of liberty was held to result from light arrest of serving soldiers ... since they continued to perform their duties and remained more or less within the ordinary framework of their army life.”
It is clear, not least from what he went on to say, that when Lord Bingham referred to “the life the person would have been living otherwise” what he was comparing was not the life of a civilian but the life of a soldier “within the ordinary framework of … army life.”[83]Now typically, perhaps in most cases, the relevant comparator will, as I have said, be the ordinary adult going about his normal life. One sees this, for example, in the control order cases, where the task for the court is to start from the applicant’s concrete situation and to assess how far he is nonetheless able to pursue a normal life: Baroness Hale of Richmond in Secretary of State for the Home Department v JJ and others [2007] UKHL, [2008] 1 AC 385, para [62]. She went on (para [63]):
“It is necessary to focus on the actual lives these people were required by law to lead, how far they were confined to one place, how much they were cut off from society, how closely their lives were controlled.”
[84]In that case the House of Lords, by a majority, upheld the decision of the trial judge that there was a deprivation of liberty. Ms Richards submits that it is illuminating, even in the present very different context, to see why. I agree. Lord Bingham of Cornhill explained (para [24]):
“The effect of the 18-hour curfew, coupled with the effective exclusion of social visitors, meant that the controlled persons were in practice in solitary confinement for this lengthy period every day for an indefinite duration, with very little opportunity for contact with the outside world, with means insufficient to permit provision of significant facilities for self-entertainment and with knowledge that their flats were liable to be entered and searched at any time. The area open to them during their six non-curfew hours was unobjectionable in size, much larger than that open to Mr Guzzardi. But they were ... located in an unfamiliar area where they had no family, friends or contacts, and which was no doubt chosen for that reason. The requirement to obtain prior Home Office clearance of any social meeting outside the flat in practice isolated the controlled persons during the non-curfew hours also. Their lives were wholly regulated by the Home Office, as a prisoner’s would be, although breaches were much more severely punishable. The judge’s analogy with detention in an open prison was apt, save that the controlled persons did not enjoy the association with others and the access to entertainment facilities which a prisoner in an open prison would expect to enjoy.”
Baroness Hale of Richmond’s analysis (para [60]) was to similar effect.[85]In Secretary of State for the Home Department v E and another [2007] EWCA Civ 459, [2007] UKHL 47, [2008] 1 AC 499, the analysis was along similar lines though the outcome on the facts was different: see, in the Court of Appeal, Pill LJ at paras [59]-[63] and, in the House of Lords, Lord Bingham of Cornhill at paras [7], [11], and Baroness Hale of Richmond at para [25].[86]But in the kind of case with which we are here concerned the relevant comparator cannot be the ordinary adult going about his normal life. For the context here is very different. In the case of children we are dealing with people who are not adults. In a case such as this we are dealing with an adult with disabilities, in the present case an adult with significant physical and learning disabilities. It is noteworthy that in R v Jackson [1891] 1 QB 671, Lord Halsbury LC was careful to confine his observations to “persons of full age and sui juris.” Thus the common law. So too the Convention. As a matter of principle, and consistently with the jurisprudence in Engel and JJ, the relevant comparator in the case of a child is not an adult but another child of the same age and development. In the case of an adult with disabilities, the relevant comparator is an adult of similar age with the same capabilities and affected by the same condition or suffering the same inherent mental and physical disabilities and limitations.[87]In Re A and C (Equality and Human Rights Commission Intervening) [2010] EWHC 978 (Fam), [2010] 2 FLR 1363, paras [154]-[155], counsel instructed by the Official Solicitor on behalf of C, Ms Alison Ball QC, made a powerful submission with which I agreed. I think it is useful to set it out:
“She says that the universally praised care provided to C by her devoted parents partly takes the form of restrictions. But, she says, such restrictions are needed because of specific features of C’s genetic condition, to help her lead the best life she can. C's parents, she say, are looking after her, not punishing her; promoting and improving her autonomy and dignity, not restricting them; and in supporting her as they do they are giving to her, not taking away … The restrictions upon C, imposed in the context of her family life, are, says Ms Ball, as ‘normal’ as they could conceivably be for someone with C’s condition. They are not arbitrary at all but, rather, tailored to her needs, proportionate and imposed in good faith. Moreover, she says, it has to be remembered that A and C are inherently restricted by the manifestations of their genetic condition. The ‘restrictions’ imposed upon them do not in fact, she says, restrict their liberty in any meaningful sense of the word. Rather, in the context of their restrictive condition, they maximise their opportunities and help them to live their lives to the full (emphasis added)”
I draw attention to the passages I have emphasised which, in my judgment, capture two very important truths: that some people are inherently restricted by their circumstances and that the “normality” with which we are here concerned is the normality of the life of someone with the relevant condition, not the normality of the life of the able-bodied man or woman on the Clapham omnibus.[88]Parker J, as we have seen, had adopted very much the same approach in Re MIG and MEG, para [203], when, in the passage I have already set out, she said that it was difficult to see how someone could be said to be deprived of their liberty if they are “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”. She continued (para [229]) with this illuminating observation:
“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.”
[89]Parker J’s decision was upheld by this court: P and Q v Surrey County Council [2011] EWCA Civ 190, [2011] 2 FLR 583. All three judges adopted much the same approach as Parker J.[90]Wilson LJ said (para [28]):
“by her reference to the provision for the girls of care in a home, the judge was by implication stressing the relative normality of the living arrangements under scrutiny. If the person is living with her parents or other members of his natural family in their home, she is living – in that respect – the most normal life possible … Not much less normal for this purpose is the life of a child in the home of foster parents or of an adult, such as Mr HL, in the home of carers”
. He continued (para [29]): “Of course the enquiry into normality transcends an enquiry into the residential arrangements. Of potentially great relevance in the case of children or young adults is whether, as would be normal almost irrespective of the degree of any disability, they go out to some sort of school or college; and, in the case of other adults, whether they go out to college or to a day centre or indeed in order to pursue some form of occupation. “It would seem then that if the individual can maintain a (relatively) normal daily balance between work and home then there may not be a deprivation of liberty”: “Law of the ECHR”, by Harris, O'Boyle and Warbrick, 2008, 2nd ed, 124. Furthermore … stress was laid in the cases both of HL and of Storck on the restrictions placed on outside social contact, ie, another major aspect of normal life”.[91]Included amongst what he identified as being relevant factors were (para [31]) the fact that in both cases “the elements of confinement, supervision and control in their lives were likely to be permanent” and (para [33]) that in one case although she was in receipt of medication “she would have required such medication whatever her circumstances.”[92]Smith LJ referred (para [37]) to “the normality of the living arrangements and the opportunities for leaving the place of residence for the purposes of recreation, education and social contact.” She added what, in my judgment, is a very significant observation (para [40]):
“The test is an objective one but the assessment must take account of the particular capabilities of the person concerned. What may be a deprivation of liberty for one person may not be for another. The question is whether the arrangements made by the state for this individual amount to a deprivation of his or her liberty.”
That echoes precisely the point made by the Strasbourg court in Engel.[93]Mummery LJ referred (para [48]) to the “more recognisable family conditions of physical and emotional care, protection and education” in which MIG (P) and MEG (Q) had been placed and (para [52]) to “the limitations that accompany their disabilities”.[94]On one issue there was a difference of view. Wilson LJ (para [30]) preferred:
“not to venture an opinion whether it may be relevant to focus on reductions in the level of autonomy in the arrangements under scrutiny from its level in the arrangements which were in place before the protective steps were imposed.”
[95]Smith LJ, however, did express a very clear view (para [39]):
“the previous arrangements are not relevant to the question of whether the present arrangements engage article 5. Article 5 is not concerned with any changes in the person's situation; it is concerned with the objective question of whether there is, under the arrangements imposed by or imputable to the state, a deprivation of liberty. I envisage the possibility that the arrangements made by a Council might reduce the degree of liberty available to a person and yet still avoid being a deprivation of liberty; equally they might increase the degree of liberty and yet still represent a deprivation of it.”
I respectfully agree on this point with Smith LJ.[96]Mr Gordon suggests that this chain of reasoning may lead to the difficulty that there is no relevant yardstick or touchstone by which to judge or assess ‘relative normality.’ So, he suggests, the concept of ‘relative normality’ lacks analytic coherence. I do not agree. Nor, I venture to think, would Wilson, Smith and Mummery LJJ. Indeed, Smith LJ herself had provided the key in the important passage at para [40] which I have already set out.[97]In agreement with Smith LJ I would hold that, when evaluating and assessing the ‘relative normality’ (or otherwise) of X’s concrete situation in a case such as this, the contrast is not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or woman on the Clapham omnibus, but with the kind of lives that people like X would normally expect to lead. The comparator, in other words, is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations (call them what you will) as X. Likewise, in the case of a child the comparator is a child of the same age and development as X.

Deprivation of liberty: the case-law

[98]In P and Q v Surrey County Council [2011] EWCA Civ 190, [2011] 2 FLR 583, para [28], Wilson LJ referred to the various types of placement as a spectrum. At one end there is the family home and then, not very far removed from the family home, a foster placement or analogous placement in the case of an adult. But, as he commented:
“even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children’s home or nursing home, on the one hand, and a hospital designed for compulsory detentions like Bournewood; and it is in my view necessary to place each case along it.”
[99]There are various reported decisions, both in the Family Division and more recently also in the Court of Protection, in cases where judges have been required to consider whether or not some particular regime constitutes a deprivation of liberty. In some of these cases the reported judgment bears only on other issues. But there may be advantage in briefly identifying and classifying, in a rough and ready way, some of the cases which throw light on the issue with which we are here concerned: i) The family home: Re A and C (Equality and Human Rights Commission Intervening) [2010] EWHC 978 (Fam), [2010] 2 FLR 1363, concerned two young, unrelated, women, one still a child, the other an adult, both of whom suffered from Smith Magenis Syndrome. Each lived at home with her family. I held that neither was deprived of her liberty. ii) Foster and analogous placements: Re MIG and MEG [2010] EWHC 785 (Fam), [2010] COPLR Con Vol xxx, appeal dismissed P and Q v Surrey County Council [2011] EWCA Civ 190, [2011] 2 FLR 583, concerned two young sisters, MIG (P), who was 18 at the time of the hearing before Parker J, and MEG (Q), who was 17. Both suffered from learning disabilities. At the time of the hearing before Parker J, MIG was living in foster care. Parker J held that she was not deprived of her liberty. This court upheld her decision. iii) Sheltered accommodation: I have already summarised the circumstances in Re MIG and MEG. At the time of the hearing before Parker J, MEG was living in a small specialist home for adolescents of which she was one of four residents. Parker J held that she was not deprived of her liberty. This court upheld her decision. iv) A children’s home: In Re RK (Minor: Deprivation of Liberty) [2010] EWHC 3355 (COP), [2010] COPLR Con Vol xxx, a 17½ year old girl suffering from autism, ADHD and severe learning difficulties was placed in a children’s home which Mostyn J found (para [39]) did not involve a deprivation of liberty. An appeal is currently before this court, so I say no more about the case. v) An ‘ordinary’ care home: In LLBC v TG, JG and KR [2007] EWHC 2640, [2009] 1 FLR 414, TG, an elderly man of 78 suffering from dementia and cognitive impairment, had been placed in what McFarlane J (as he then was) described (para [105]) as “an ordinary care home where only ordinary restrictions of liberty applied.” He held that there was no deprivation of liberty, although adding (para [108]) that the circumstances “may be near the borderline”. It may be noted that TG was described by the judge as being “personally compliant” and “objectively content with his situation there.” vi) A residential special school: In C (by his litigation friend the Official Solicitor) v A Local Authority and LM, LPM, The PCT and an Organisation (Interested Parties) [2011] EWHC 1539 (Admin), (2011) 14 CCCL 471, a child, now 18, with severe autism, severe learning difficulties and extreme challenging behaviours, had been placed in a residential special school under a regime which Ryder J held (para [114]) involved a deprivation of liberty. vii) A support unit: In London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP), a man of 21 with childhood autism and a severe learning disability was placed in a support unit which Peter Jackson J found to involve a deprivation of liberty. “Key features”, according to the judge, were (para [161]) “his objection to being at the support unit, the objection of his father, and the total effective control of [his] every waking moment in an environment that was not his home.”[100]Two cases lie towards the other end of the spectrum. The first is HL v United Kingdom (2004) 40 EHRR 761, the original Bournewood case. The facts are too familiar to require elaboration. HL was an informal patient in a mental hospital. The Strasbourg court held that he had been deprived of his liberty. The central core of its reasoning is to be found in para [91]:
“the key factor in the present case [is] that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements … The … applicant would only be released from the hospital to the care of Mr and Mrs E as and when those professionals considered it appropriate … Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave.”
[101]The other case is DE v JE and Surrey County Council [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, where I was concerned with DE, an elderly man of 75 who, following a stroke, suffered from short term memory loss and dementia and had been placed in a residential care home. I identified the crucial issue as follows (para [115]):
“the crucial question in this case … is not so much whether (and, if so, to what extent) DE’s freedom or liberty was or is curtailed within the institutional setting. The fundamental issue … is whether DE … has been and is deprived of his liberty to leave the Y home … in the sense of removing himself permanently in order to live where and with whom he chooses, specifically removing himself to live at home with [his wife].”
I continued (paras [125]-[126]):
“he is being “deprived of his liberty” by being prevented from returning to live where he wants and with those he chooses to live with, in other words at home and with [his wife] … Just as HL was, in the view of the Strasbourg court, deprived of his liberty … so in very much the same way DE … is being deprived of his liberty. The simple reality is that DE will be permitted to leave the institution in which [the local authority] has placed him and be released to the care of [his wife] only as and when … [the local authority] considers it appropriate.”

Deprivation of liberty: conclusions

[102]At this point it may be helpful to draw some of the threads together. My purpose, I stress, is limited. It is merely to draw attention to some aspects of the jurisprudence which are likely to be of significance in the kind of cases that come before the Court of Protection. i) The starting point is the “concrete situation”, taking account of a whole range of criteria such as the “type, duration, effects and manner of implementation” of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not nature or substance. ii) Deprivation of liberty must be distinguished from restraint. Restraint by itself is not deprivation of liberty. iii) Account must be taken of the individual’s whole situation. iv) The context is crucial. v) Mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty vi) In determining whether or not there is a deprivation of liberty, it is legitimate to have regard both to the objective “reason” why someone is placed and treated as they are and also to the objective “purpose” (or “aim”) of the placement. vii) Subjective motives or intentions, on the other hand, have only limited relevance. An improper motive or intention may have the effect that what would otherwise not be a deprivation of liberty is in fact, and for that very reason, a deprivation. But a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty. Good intentions are essentially neutral. At most they merely negative the existence of any improper purpose or of any malign, base or improper motive that might, if present, turn what would otherwise be innocuous into a deprivation of liberty. Thus the test is essentially an objective one. viii) In determining whether or not there is a deprivation of liberty, it is always relevant to evaluate and assess the ‘relative normality’ (or otherwise) of the concrete situation. ix) But the assessment must take account of the particular capabilities of the person concerned. What may be a deprivation of liberty for one person may not be for another. x) In most contexts (as, for example, in the control order cases) the relevant comparator is the ordinary adult going about the kind of life which the able-bodied man or woman on the Clapham omnibus would normally expect to lead. xi) But not in the kind of cases that come before the Family Division or the Court of Protection. A child is not an adult. Some adults are inherently restricted by their circumstances. The Court of Protection is dealing with adults with disabilities, often, as in the present case, adults with significant physical and learning disabilities, whose lives are dictated by their own cognitive and other limitations. xii) In such cases the contrast is not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or woman on the Clapham omnibus. The contrast is with the kind of lives that people like X would normally expect to lead. The comparator is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations as X. Likewise, in the case of a child the comparator is a child of the same age and development as X.[103]There is one further point I should like to emphasise. The fact that a domestic setting can involve a deprivation of liberty does not mean that it very often will. Indeed, typically it will not. In the kind of context with which we are here concerned – the care of children or vulnerable adults – there will normally be no deprivation of liberty if someone is being cared for by their parents, friends or relatives in a family home. Nor, I should add, will there normally be any deprivation of liberty if they are in a foster placement or its adult equivalent or in the kind of small specialist sheltered accommodation of the type occupied by MEG.[104]There may, of course, be cases, though one would hope only rarely, where the Court of Protection will have concerns about whether something is being done for some improper purpose or with some improper motive. Such cases apart, I would hope and expect that the Court of Protection will be able to deal with most cases of this type fairly but at the same time simply and quickly. Many of the cases coming before it will, I suspect, fall fairly obviously into the category I have referred to in the last paragraph and can thus be dealt with quite quickly on the basis that there is no deprivation of liberty. At the other end of the spectrum there will be cases such as HL v United Kingdom (2004) 40 EHRR 761, DE v JE and Surrey County Council [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, and London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP), where it should not take too long to determine that there is a deprivation of liberty. The more difficult cases, and, I would hope, the only ones that may need more protracted investigation, are those in the middle of the spectrum.

The appeal

[105]Baker J began the crucial part of his analysis by acknowledging (para [58]) the “very great care” that had been taken “to ensure that P’s life is as normal as possible”, and by recognising the various features that “by themselves, might suggest that this is not a case where he was being deprived of his liberty” and “help to give his life a strong degree of normality.” So far, so good. I entirely agree with this analysis. It points, however, towards a conclusion that P is not being deprived of his liberty: compare, for example, Re MIG and MEG, where MEG was living in a rather similar type of placement.[106]What seems to have swung the balance is the judge’s conclusion (para [59]) that P’s life is “completely under the control of members of staff at Z House.” Now that, of course, is the form of words familiar from HL v United Kingdom (2004) 40 EHRR 761, para [91]. But it is important to see what precisely Baker J had in mind. He tells us. First, P “cannot go anywhere or do anything without their support and assistance.” Second, and “more specifically”, P’s behaviours “require a range of measures, including at times physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained.” Moreover, as I read his judgment, it was the second of these two matters that finally tipped the balance for the judge. For, as he explained (para [60]):
“In my judgment, the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty.”
[107]I am loath to differ from the considered conclusion of a judge as experienced in this kind of case as Baker J and whose views on such a matter are entitled to very great respect. But I have to say that I have great difficulty in accepting his analysis in relation to either of the two aspects of the case which appear to have weighed with him.[108]As to the first, it might be thought that what the judge no doubt accurately calls “support and assistance” is a positive rather than a negative feature of P’s life. It is surely something that fosters rather than hinders what for P is, unhappily, the inevitable ‘normality’ of his life, wherever he may be and whoever may be looking after him.[109]Ms Richards says that the judge has simply not analysed the contents and substance of the care package. I need not follow her into the details of that submission, which faces the difficulty that Baker J, whatever he said or did not say in the crucial paragraphs of his judgment, on any view quite plainly had the details of P’s life and routines at Z House very much in mind. There is a more fundamental problem.[110]Baker J never compared P’s situation in the Z House with the kind of life P would have been leading as someone with his disabilities and difficulties in what for such a person would be a normal family setting. He never grappled with the question whether the limitations and restrictions on P’s life at Z House are anything more than the inevitable corollary of his various disabilities. The truth, surely, is that they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead. P’s life, wherever he may be living, whether at home with his family or in the home of a friend or in somewhere like Z House, is, to use Parker J’s phrase, dictated by his disabilities and difficulties. There is nothing to show that the life P is living at Z House is significantly different from the kind of life that anyone with his concatenation of difficulties could normally expect to lead, wherever and in whatever kind of setting they were living. On the contrary, as Baker J himself recognised, there is, using the phase in its correct sense, a “strong degree of normality” in P’s life at Z House. Normality, that is, assessed as it must be by reference to the relevant comparator.[111]Baker J referred to the fact that P “cannot go anywhere or do anything without their support and assistance.” That, no doubt, is a fact. But it is surely the reality inherent in and dictated by his various disabilities. It is not something imposed on him by Z House. There is nothing to show that P would not require the same kind of “support and assistance” wherever he was living and in whatever kind of setting. Plainly he would. Indeed, the judge so found, when recording (para [6]) that “As a result of his disability, he needs a high level of care … He requires prompting and assistance with all activities of daily living, including mobility, nutrition, eating, personal hygiene and continence” (emphasis added).[112]Of course, as Wilson LJ emphasised in P and Q v Surrey County Council [2011] EWCA Civ 190, [2011] 2 FLR 583, the enquiry into normality transcends an enquiry into the domestic arrangements. A vital aspect is the nature and extent of P’s participation in and interaction with the wider community outside Z House, whether in terms of education or occupation, social contact, sport or other outdoor activities. But the evidence in relation to this is clear. Not merely is P, when he is at Z House, living a life which is as normal as it can be for someone in his situation, his life outside Z House is as normal as it can be for someone, to use Smith LJ’s phrase, with his capabilities.[113]As to the other matter which weighed with him, Baker J’s reasoning is, I have to say, equally problematic. The measures described by the judge as applied from time to time to P are far removed from the physical or chemical restraints which one sometimes finds, for example, in mental hospitals. They are, in truth, the kinds of occasional restraint that anyone caring for P in whatever setting – for example, his own mother if he was still living at home – would from time to time have to adopt.[114]The “body suit” that P wears is an ‘all-in-one’ garment, the essential feature of which is that the zip is at the back, rather than the front, so that P cannot access his continence pads. It is, as Ms Richards properly emphasised, nothing like a strait-jacket; it is more akin to a child’s ‘baby grow’. Reference is made to the fact that P is strapped into his wheelchair. But this is for his own safety. With all respect to those who may take a different view, one could just as well argue that a small child, because he has to live where his parents determine, is deprived of his liberty if, as a baby, he is strapped into a buggy or, as an older child, is strapped into a car seat. Nor can I attach the same weight as Baker J to the “finger sweep” of P’s mouth to remove materials which, not least having regard to his own health and safety, ought not to be there. This is obviously intrusive, as Baker J says, but again it has to be looked at in context. It is little different from what any properly attentive parent would do if a young child was chewing or about to swallow something unpleasant or potentially harmful. The only difference is that with an adult like P two people are needed to do what one could manage alone if dealing with a smaller child. Of course it involves a degree of restraint, although only briefly, but this degree of restraint is far removed indeed from anything that begins to approach a deprivation of liberty. Restraint must be distinguished from deprivation of liberty. In extreme cases restraint may be so pervasive as to constitute a deprivation of liberty, but restraint by itself is not deprivation of liberty.[115]I do not, with respect to the judge, see how any of these matters, whether viewed separately or together, are capable of tipping the balance. They are not. Indeed, in taking this approach the judge, as Ms Richards submits, erred in law, for his approach does not, in my judgment, accord with that spelt out by Lord Bingham of Cornhill in Secretary of State for the Home Department v E and another [2007] UKHL 47, [2008] 1 AC 499, para [11], and Lord Hope of Craighead in Austin and another v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 AC 564, para [18].[116]Baker J’s decision on this point cannot stand. In my judgment, P is not being deprived of his liberty. The facts are far removed from cases such as HL v United Kingdom (2004) 40 EHRR 761, DE v JE and Surrey County Council [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, and London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP). The concrete situation in which P finds himself at Z House is very much closer to the concrete situation of MEG, who was living in a rather similar type of placement. At Z House and outside it P is living a life which is as normal as it can be for someone in his situation.

Conclusion

[117]In my judgment the appeal should be allowed and we should substitute for the declaration granted by Baker J a declaration in appropriate terms to the effect that P’s care plan at Z House does not involve a deprivation of liberty.

Lloyd LJ :

[118]I agree with the judgment of Munby LJ, and accordingly I agree that the appeal should be allowed.[119]Article 5 has given rise to some difficult issues, and no doubt will go on doing so. The concepts of motive, purpose and intention, discussed by Munby LJ in his judgment, may occasion further debate in future cases. Clearly it is not a sufficient answer to an assertion that a person has been deprived of his or her liberty to say that what is being done is done for his or her own good. On the other hand, the decision of the House of Lords in Austin shows that the objective purpose and intention behind the steps taken can be relevant to the question whether they do amount to a deprivation of liberty at all.[120]I agree in particular with Munby LJ that a critical element in the necessary examination of the relevant circumstances is to consider the characteristics of the appropriate comparator. It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. As he says the right comparison is with another person of the same age and characteristics as P. In Lord Bingham’s words quoted at paragraph [82] above, the court must assess “the effect of the measures on the life the person would have been living otherwise”. An equivalent comparator, or P if he were not accommodated at Z House and supported by the local authority as he is, would require exactly such support and assistance from someone, and would also need steps to be taken, from time to time, to protect him from harming himself in any number of different ways. It does not seem to me that the facilities provided for P by the support staff at Z House, as described in the judgment of Baker J and in the care plan, amount to anything which can fairly be described as deprivation of liberty. At most, what the judge refers to in the last sentence of his paragraph 59 (quoted by Munby LJ at paragraph [21] above) amounts to a temporary restraint on P. I respectfully disagree with the judge’s conclusion at paragraphs 60 and 61 that this, or any other aspect of the care plan, involves a deprivation of P’s liberty.

Pill LJ :

[121]I agree that the appeal should be allowed for the reasons given by Munby LJ at paragraphs 105 to 116 of his judgment. I also agree with the approach to this issue recommended by Munby LJ at paragraphs 103 and 104. I also agree with the judgment of Lloyd LJ.

Cited in 11 later judgments

and 2 more of the most senior